Under debate, again is the dilemma regarding which right should prevail: that of employers to make their business a neutral space from an ideological, philosophical and religious perspective, or that of workers to make visible their convictions, also in the workplace, where they do not cease to be persons?

This legitimate confrontation of rights between the parties to the employment relationship could be resolved as follows: employers can, within the scope of their power of management and pursuant to the freedom of enterprise recognized in Article 16 of the Charter of Fundamental Rights of the European Union and in Article 38 of the Spanish Constitution, implement a neutrality policy which forbids workers to wear symbols of political, philosophical and religious convictions.

However, this assertion cannot be categorical since these business practices are not free from controversy, especially when they clash with workers’ ideological, religious and political freedom. Numerous disputes have been brought before the courts at national and international level as a consequence of employers’ decisions or practices, which forbid their workers to wear symbols, which show their political, philosophical and religious convictions in the workplace or even impose disciplinary penalties for breach of these instructions.

There is currently no unanimous case law or approach in relation to this issue at EU level.

The European Court of Human Rights has had the opportunity to analyze on several occasions various scenarios of confrontation between the use of religious symbols and other possible interests of various kinds, adopting differing and diverse solutions, tending to respect the autonomy of national legislation of the State in which such confrontation emerged.

The cases relating to the prohibition of the use of the Islamic scarf or veil in the workplace are well known (Dahlab, Leyla Sahin v. Turkey, or S.A.S. v. France), or of wearing a cross around one’s neck (the case of British Airways).

This debate has arisen again in the EU courts due to two requests for preliminary rulings filed by the German courts Arbeitsgericht Hamburg (Hamburg Labor Court) and Bundesarbeitsgericht (Labor Chamber of the Supreme Court), which relate to the application of the nondiscrimination principle in employment and occupation regulated in Directive 2000/78/EC. Amongst other issues, the Court of Justice of the European Union (CJEU) was consulted as to: whether the employer’s decision consisting of applying a neutrality policy which forbids workers who are in direct contact with clients to wear visible signs of political, philosophical or religious convictions constitutes direct or indirect discrimination on grounds of workers’ religion or convictions.

The legal debate analyzes whether the employer’s objective of conveying to clients an image of neutrality is sufficient justification for imposing (or impeding) a certain dress standard on their workers, which may affect or violate their religious freedom or whether, on the other hand, the employer is also required to prove a certain detriment.

After a detailed analysis of the conflicting freedoms (of enterprise and ideology), the scope of Directive 2000/78/EC and the principle of nondiscrimination in employment and occupation regulated by Community law, the judgement given by the CJEU on July 15, 2021 resolved the issues raised, by way of summary, in the following terms:

  • An internal company rule that prohibits workers from wearing visible symbols of political, philosophical or religious convictions in the workplace does not constitute direct discrimination of religion or the convictions of workers that observe certain dress codes based on religious beliefs, provided the rule is applied in general and indiscriminately.
  • Different treatment based indirectly on religion or convictions, resulting from an internal company rule that prohibits workers from wearing visible symbols of political, philosophical or religious convictions in the workplace may be justified by the employer’s wish to apply a neutral political, philosophical and religious regime to its clients and users, on the condition that:.
    1. Firstly, the regime is based on an authentic business need that must be accredited, in particular, by the legitimate expectations of such clients and users and by the unfavorable consequences, it would suffer without the regime, according to the nature of its activities or the context in which they take place.
    2. Secondly, the difference in treatment must be able to guarantee the correct application of the neutrality regime, meaning that the regulations must be observed consistently and systematically.
    3. Thirdly, the prohibition is applied only when strictly necessary according to the actual extent of the detriment caused by the unfavorable consequences that the employer is attempting to prevent by establishing the prohibition
  • Indirect discrimination based on religion or convictions resulting from an internal company regulation that prohibits workers from wearing visible symbols of political, philosophical or religious convictions in the workplace with the aim of ensuring a neutral company regime can only be justified if the prohibition covers all visible forms of expression of political, philosophical or religious convictions. A prohibition limited to the use of large and visible symbols of political, philosophical or religious convictions may constitute direct discrimination based on region or religious belief that cannot be justified in any case by this provision.

The reply by the CJEU to the issues raised essentially coincides with the proposal made by the Advocate General in his conclusions submitted on February 25, 2021.

Finally, it is important to clarify that a different scenario from that analyzed in this post is that of the so-called “ideological companies” (tendezbetriebe), in which the lawfulness of forbidding workers to wear symbols which contradict the company’s ideological or religious tendency is raised. For example, as the German case law has analyzed, whether it is lawful to forbid the staff of a Catholic hospital to declare pro-abortion beliefs or to wear symbols of a political party or a labor union other than the party or union for which services are provided.

These issues are a consequence of the human condition itself. To recall the words of the Swiss writer Max Frisch: “We asked for workers… we got people instead”.

Rosa María Melendez

Departamento Laboral de Garrigues