Religious manifestation at work:A recent decision by the CJEU on ‘neutral’ clothing requirements imposed on workers

Written by Laurene Veale

Laurene Veale

In its judgment of the 13th October 2022, LF v SCRL, Case C‑344/20,  the CJEU returns to the question of religious discrimination at work, in a case about an employer’s policy against headscarves at work.  Laurene Veale considers its relevance to the UK, and its implications for tolerance and diversity in the workplace.

What is the case about?

The case concerned a woman who was refused an internship in a social enterprise in Belgium because she had said in the recruitment interview that she would not remove her headscarf to comply with the company’s so-called ‘policy of neutrality’ which required workers ‘not to manifest in any way, either by word or through clothing (…) their religious, philosophical or political beliefs’. She offered to wear another type of head covering but the company continued to refuse to hire her on the ground that no type of head covering was allowed, even a cap or hat.

The CJEU held that such this refusal to hire her does not amount to direct religious discrimination, as long as the policy is applied  to all workers equally and has not been introduced just to target a particular worker or religious sign. However, the CJEU recognises that there may well be indirect discrimination if an apparently neutral policy puts workers who manifest their religion through certain types of attire at a particular disadvantage. As Advocate General Medina succinctly put in it in her opinion: ‘those employees would be unable to meet the requirements of that rule unless they abandon the observance of the obligations prescribed by their faith’ (1). The CJEU held that such a ‘neutrality’ policy will therefore be unlawful if it is not objectively justified by a legitimate aim.

A ‘neutral’ image as a legitimate aim

Reiterating previous decisions, the Court held that an employer’s desire to apply a ‘policy of neutrality’ is a legitimate aim, but the employer must have a ‘genuine need’ for this policy. The employer must prove this need, for example by showing that without the policy it would suffer severe adverse economic consequences, as was held in Wabe (2). However, if an employer succeeds in demonstrating that it would lose business if one of its workers wore the headscarf, that could give rise to a situation where prejudices held by customers override tolerance and diversity in the workplace. Surprisingly, the Court has not ruled that such a scenario is impermissible under EU law, as long as it is limited to public-facing workers.

What does this mean for workers? And women?

This is now the fifth case before the CJEU where a policy of ‘neutrality’ has denied a Muslim woman access to the labour market (3). Many fear, as explained by AG Medina in her opinion, that if such ‘neutrality’ policies were to be generalised, Muslim women will suffer ‘a deep disadvantage to becoming employees’, excluding them from the labour market and creating a situation where ‘double discrimination is a real possibility’, namely religious and sex discrimination (4).

In recognition of this, and perhaps in response to criticism of the CJEU’s stance on the question, the Court emphasises in its judgment the need for EU equality law to be interpreted in a manner that encourages tolerance, respect and ‘a greater degree of diversity’ in the workplace. It has also acknowledged the risk of such policies at work being abused ‘to the detriment of workers who observe religious precepts requiring the wearing of certain types of clothing.’(5).

This language is a welcome development in that it expressly recognises the desirability of diversity in the workforce and in society. But it does not go so far as addressing the problem raised by AG Medina in her Opinion, which is that ‘as a consequence of the judgment in Wabe, employees observing religious clothing obligations are faced with the dilemma, in the literal sense of the word, of deciding between retaining a job in an undertaking or respecting the obligations prescribed by their faith’ (6). Instead, the CJEU merely notes in its judgment that EU law does not stop member states from legislating to ascribe greater importance to the freedom to manifest a religion or belief than other freedoms, such as for example the freedom to conduct a business. That leaves open the possibility of national laws rendering it harder for employers to rely on their entrepreneurial rights to justify policies that disadvantages workers due to their religion or belief (7).

Religion and belief as a single ground of discrimination

The case is also significant in that it clarifies that religion and philosophical or spiritual belief are two facets of the same protected characteristic, and that Member states cannot go so far as to split religion and belief into separate grounds of discrimination in national legislation.

This differs from AG Medina’s conclusions that such an approach would enable a higher degree of protection against unequal treatment, by facilitating comparisons, for example, between workers with religious beliefs and workers with non-religious philosophical beliefs. AG Medina emphasised, as had AG Bobek in Cresco (8),  that a choice of a different comparator can yield different answers to the question of whether discrimination is made out. For example, comparing the treatment of a Muslim worker to a non-religious worker may reveal a disadvantage which is not apparent when comparing that worker with one of the same religion but who manifests it not by wearing a headscarf but by wearing a beard.

The Court explained that EU case law already recognises intra-group discrimination, for example, by comparing persons with different kinds of disabilities, as was done in Szpital Klinicsny (9). However it did not accept that allowing a separation of the protected characteristic of religion on one hand, and philosophical or spiritual belief on the other, would further the intended purpose of the EU framework on equal treatment at work.

Finally, the judgment specifies that religion and philosophical or spiritual belief are distinct from political or any other opinion, such as artistic or cultural opinion. This is because Article 1 of the Equal Treatment Directive contains an exhaustive list of protected characteristics, which does not include ‘political or trade union belief’ nor ‘artistic, sporting, aesthetic or other beliefs or preferences’ (10). EU member states are of course free to legislate to protect those beliefs (as Belgium has done) but that would be outside the scope of the Directive.

What’s the relevance of this in the UK?

CJEU decisions which post-date Brexit are not binding on UK courts but courts may ‘have regard’ to such decisions so far as it is relevant to the matter before them (s.6(2) European Union (Withdrawal) Act 2018). This decision will have inevitable relevance to us in the UK because it relates to fundamental principles of equality at work protected by our domestic law. Moreover, although protection from discrimination on the grounds of religion and belief is now enshrined in the Equality Act 2010, that Act was passed to transpose Directive 2000/78, so this interpretation of the Directive may affect the interpretation of the Equality Act. 

Endnotes:

(1)       Opinion of AG Medina, §42, accessible here.

(2)       WABE and MH Müller Handel, C 804/18 and C 341/19,  §67.

(3)       Achbita v G4S Secure Solutions NV, C‑157/15 (2017); Bougnaoui v Micropole SA, C‑188/15 (2017) and WABE and MH Müller Handel, C 804/18 and C 341/19, EU:C:2021:594.

(4)       Opinion of AG Medina, §66.

(5)       §41 of the judgment.

(6)       Opinion of AG Medina, §50.

(7)       §52 of the judgment.

(8)       Opinion of AG Bobek in Cresco Investigation, Case C‑193/17, §55 and §62.

(9)       See Szpital Kliniczny im. dra J. Babińskiego Samodzielny Publiczny Zakład Opieki Zdrowotnej w Krakowie, Case C‑16/19, §34.

(10)      §28 of the judgment.