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Last Tuesday, on March 14th 2017, the Court of Justice of the European Union (CJEU) issued two preliminary rulings on the visible wearing of any political, philosophical or religious signs at work and in work-related relationships. Whereas the question of wearing religious sign during working hours is much debated in European Member States, especially in France and Belgium, the CJEU ruled that private undertakings are able to, legally, forbid the wearing of Islamic headscarf or any political, philosophical or religious sign during working hours.

These two cases, issued on the same day, dealt with a similar question but were related to two different Member States, France and Belgium, and laid out two limits on wearing religious signs at the workplace.

Indeed, the first case took part in Belgium where an employee was asked by her employer to take off her Islamic headscarf during working hours. Due to her wish to continue wearing it and the reference of the prohibition of wearing such scarf in the internal rules of the undertaking, her employer dismissed her. After her dismissal, she decided to challenge it before Belgium courts.

Therefore, Belgium’s Highest Court decided to ask a question with regards to the interpretation of a directive, establishing a general framework for equal treatment in employment and occupation. In particular, the question was on the fact of whether or not the prohibition on wearing an Islamic headscarf (forbidden by an internal rule of the undertaking) could be considered as a direct discrimination.

The CJEU argued that an internal rule, which prohibits the wearing of Islamic headscarf, does not constitute a direct discrimination. However, the Court introduced a nuance to its statement. It admitted the prohibition, but let the door open to indirect discrimination which may lead to a difference of treatment forbidden by EU-law. Nevertheless, this kind of discrimination can be legal if it pursues a “legitimated goal and if the means of achieving that aim were appropriate and necessary”. For example, the Court outlined that “an image of neutrality” of an undertaking can legitimate the prohibition.

In the second case, a French one, the facts are slightly different. An employee of a French undertaking was dismissed by refusing to take her Islamic headscarf off after a complaint of a client and the request of her employer to remove it. Here, the Court laid down another case, one where there is no reference to the prohibition in the internal rules. To justify the dismissal, it is necessary to prove that “the characteristic at issue constitutes a genuine and determining occupation requirement”. However, the Court carefully outlined that it is in very limited case that a characteristic in relation with religion can constitute such a thing.

These two preliminary rulings definitely highlight the “fight” between freedom to conduct a business and freedom of religion both guarantee by EU-law and difficult to solve. Furthermore, they highlighted for the first time the CJEU’s wishes to become involved in this animated debate and to give a concrete answer, a legal framework at a European level. This ambition of the Court is characterized by the fact that those two preliminary rulings are issued by the Grand Chamber of the CJEU. This composition of the Court has been chosen because those two cases are particularly complex and important. Indeed, they will definitely have a political and social impact in all Member States of the European Union.

Alice Poidevin

Sources

http://curia.europa.eu/jcms/upload/docs/application/pdf/2017-03/cp170030en.pdf

http://www.liberation.fr/planete/2017/03/14/port-du-voile-en-entreprise-la-cour-de-justice-europeenne-pose-un-nouveau-cadre_1555608

http://www.liberation.fr/planete/2017/03/14/foulard-islamique-une-entreprise-peut-interdire-le-port-de-signes-religieux_1555506

http://www.lemonde.fr/emploi/article/2017/03/14/la-justice-europeenne-se-penche-sur-le-port-du-voile-islamique-au-travail_5093936_1698637.html

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