A provision in an undertaking’s terms of employment which prohibits workers from manifesting their religious or philosophical beliefs in any way does not constitute direct discrimination and is compatible with EU law.
ECJ, judgment of 13 October 2022 – C-344/20
Background
The defendant in the main proceedings, which were conducted before a Belgian labour court, lets and operates social housing. It has issued a neutrality rule for its undertaking, applicable to all of its workers, that prohibits them from manifesting religious, philosophical or political beliefs through clothing or in any other way. The applicant applied to the defendant for a six-week unpaid internship as part of her vocational studies. She is of the Muslim faith and wears a headscarf as a manifestation of her belief. The defendant was prepared to employ the applicant subject to the condition that she comply with the neutrality rule and remove her headscarf at work. Since the applicant refused to do so, an internship agreement was not concluded. In her opinion, the defendant’s decision not to hire her was directly based on her religious belief. In the main proceeding, she sought a declaration that the defendant thereby infringed the provisions of Belgium’s General Anti-Discrimination Law. Since it was adopted in order to transpose Directive 2000/78/EC, it must be interpreted in conformity with the Directive in the main proceedings. The Belgian court had stayed the proceedings and referred a number of questions on the interpretation of Directive 2000/78/EC to the ECJ.
ECJ’s decision
The ECJ held that “religion” and “belief” are two different facets of a single ground of discrimination. This is to be distinguished from “political or any other opinion” cited in the defendant’s terms of employment which comprise a separate ground of discrimination. However, these aspects are not mentioned in the Directive and therefore do not fall within its scope.
The ECJ then addressed the question of whether the defendant’s terms of employment have the effect of directly discriminating against those employees who wish to manifest their religious or philosophical beliefs externally. In this connection, it made reference to the distinction drawn in its previous case law, namely that such direct discrimination exists if the requirement of neutrality only applies to certain forms or types of expression which are inextricably linked to a specific religion or belief, while a prohibition that applies in an undifferentiated way to all workers and all forms of expression does not constitute direct discrimination. But this could lead to indirect discrimination if the apparently neutral obligation actually puts persons adhering to a particular religion or belief at a particular disadvantage. Such indirect discrimination, however, could be objectively justified by a legitimate aim. If an employer’s aim is to project an image of political, religious and philosophical neutrality to its customers and the general public, and it has an understandable need to do so, then this aim is to be regarded as legitimate.
Finally, the ECJ addresses a provision of national law that treats “religious belief” and “philosophical belief” as two separate grounds of discrimination. The court in the main proceedings referred to the ECJ the question of whether such a law could be regarded as a provision that was more favourable than the standard in the Directive, which would be permitted by Article 8 of Directive 2000/78/EC. The ECJ held that this was not the case and considered the splitting of a single ground of discrimination into several grounds to be contrary to European law. It found that this approach is not covered by the fundamental right of a Member State – when balancing diverging interests – to ascribe greater importance to a specific ground of discrimination due to factors specific to that Member State.
Our assessment
The ECJ thus upholds its previous case law on general neutrality rules of an employer which discriminate against workers based on a manifestation of their religious or philosophical beliefs, making reference to its previous judgments in the Bougnaoui, WABE and MH Müller Handel cases. It remains the case that such internal company rules must apply to all employees in a general and undifferentiated way. Any indirect disadvantaging that might be associated with this can be justified by the employer’s understandable need to project a politically, religiously and philosophically neutral image. This position of the ECJ can now be described as settled case law.
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