Public administrations can prohibit employees from wearing religious symbols at work

There have previously been several debates in Belgium about wearing religious symbols in the workplace. These discussions often focus on wearing headscarves. Banning such symbols is often part of a neutrality policy the employer wants to impose.

(Local) governments are also struggling with the issue. The employer's desire for neutrality is then weighed against the employee's freedom to practice their religion.

The European Court of Justice has addressed this debate in a recent ruling.

In its judgment of 28 November 2023, the European Court of Justice ruled that a public administration may impose an internal rule that generally prohibits its staff from wearing visible signs at work expressing philosophical or religious beliefs. Such a rule may be justified by the administration's desire to create a completely neutral public environment. More specifically, however, the rule must then be effectively appropriate, necessary, and proportionate in the given context - whether this is the case is for the national court to assess.

The European Court of Justice delivered this judgment following a preliminary question from the Liège Labour Tribunal. The case concerned an employee at a municipality who had been employed in a back office position since April 2016. Until February 2021, she performed her duties without wearing any signs which might reveal her religious beliefs or making a claim to that effect. In February 2021, she requested the municipality to allow her to wear a headscarf at work. That same month, this request was provisionally rejected. The municipal administration amended the labour regulations in March 2021, notably including an obligation of "exclusive neutrality" at work. It concerned a ban on all employees of the municipality from wearing any visible signs at work that might indicate their religious or philosophical beliefs, whether they come into contact with the public (or only interact with their hierarchical superiors and colleagues). 

The employee felt she had been discriminated against based on her religion and took the matter to the Labour Tribunal.

The Liège Labour Tribunal wanted to know in this context whether there was (in)direct discrimination within the meaning of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. 

As regards direct discrimination, the Court held that for an internal rule to constitute direct discrimination, the criteria governing the wearing of the signs must be inextricably linked to one or more particular religions or beliefs. In other words, there is no direct discrimination if the rule applies without distinction to all expressions of philosophical or religious beliefs and treats all employees of the company or organisation in the same way by requiring them to dress neutrally in a general and non-differentiated manner.

Unless the national court were to find that, despite the general and undifferentiated way in which the labour regulations were formulated, the employee was treated differently from other employees who were allowed to express their particularly religious or philosophical beliefs by wearing a visible sign, there is no direct discrimination.

As regards indirect discrimination, the Court recalls that indirect discrimination occurs when the apparently neutral obligation set out in the internal rule in fact results in a particular disadvantage to persons who have a particular religion or belief, without such difference in treatment being objectively justified by a legitimate aim and the means of achieving that aim being appropriate and necessary. While the national court has final jurisdiction to assess the facts, the Court has jurisdiction to give directions. 

The municipality argued that the internal rule aims to give effect to the principle of public service neutrality (which has its legal basis in the Belgian Constitution, the principle of impartiality and the principle of state neutrality). The Court ruled that each Member State (including local authorities within the powers assigned to them) has a degree of discretion in shaping the neutrality of the public service that the Member State wishes to promote at work. Thus, depending on its own specific context, the policy of "exclusive neutrality" can be considered objectively justified by a legitimate purpose. The same applies equally to different neutrality policies that another public administration would opt for according to its own specific context, such as a general permission to wear visible signs of philosophical or religious beliefs, including in contacts with the public, or a ban on wearing those signs limited to situations where such contacts exist. Whether it is appropriate for a government to pursue neutrality is thus a question on which the Court does not rule. In the judgment, the Court is giving a lot of leeway to the Member States, which will have to make a final decision on whether a ban is justified in the event of a dispute.

Next, the Court indicated that the internal rule must also be appropriate to ensure the proper application of the objective pursued. The Court indicates that, in this particular case, this presumes that the objective of "exclusive neutrality" is effectively pursued coherently and systematically and that the prohibition on wearing visible signs does not go beyond what is strictly necessary, which is for the national court to ascertain.

In this context, the Court noted that the legitimate aim of ensuring a completely neutral public environment through a policy of "exclusive neutrality" can be effectively pursued only if no visible manifestation of philosophical or religious beliefs is allowed; any sign - even a small one - undermines the appropriateness of the measure to achieve the alleged aim and thus the coherence of that policy.

It is now up to the Liège Labour Tribunal to decide whether the municipality's ban is indeed systematic and necessary. The tribunalhas already ruled that the individual decision of February 2021, which preceded the general work regulations and temporarily banned the headscarf, would be a form of direct discrimination.

The 28 November 2023 ruling is in line with previous rulings on private employers.

As such, a neutrality policy in the workplace is not impossible. However, the employer should consider whether such a neutrality policy is necessary to achieve a legitimate objective - this should be considered on a case-by-case basis, considering the specific situation of the company.

The experts at Reliance Littler are available if you require assistance or have any questions.