New case law about wearing religious symbols in the Belgian public sector

On 28 November 2023, a crucial decision by the Court of Justice of the European Union (CJEU) shed light on the debates surrounding wearing religious symbols in the Belgian public sector.

On 28 November 2023, a crucial decision by the Court of Justice of the European Union (CJEU) shed light on the debates surrounding wearing religious symbols in the Belgian public sector. In this decision, the Court ruled on the legality of a municipality’s ban on visible religious symbols in the workplace. In essence, the Court considered that a policy of neutrality is permitted as long as it is applied consistently, without distinction between beliefs or signs. The Brussels Labour Court fully applied this European case law recently.

The case before the CJEU involved a municipal employee – employed for several years – who subsequently requested to wear a headscarf at work. Her request was rejected by the municipality, which then promptly amended its work rules, imposing “exclusive neutrality”, understood as a ban on wearing any visible sign that might reveal the ideological, philosophical, political or religious convictions of employees, both in their contacts with the public and in their internal relations. The employee filed several proceedings against these decisions, including an action for an injunction.

The Liège labour tribunal initially noted that the individual decision to ban the headscarf constituted a direct discrimination based on religious convictions, given that other, more discreet signs of conviction – notably religious – had been tolerated by the employer, and that such a difference in treatment was not justified by essential and determining professional requirements, given that the employee mainly performed back-office duties, with no direct contact with the public.

The labour tribunal then ruled that the amendment of the work rules constituted, on the face of it, indirect discrimination, noting that the rule introduced by the amendment appeared neutral, but that its application by the municipality was variable. On the basis of this finding, the labour tribunal provisionally authorised the employee to wear her headscarf while working back office, and also decided to refer two questions to the CJEU for a preliminary ruling, as it had doubts as to whether the work rules complied with the European directive.

In its decision, the CJEU began by recalling its previous case law, since it had already held – with regard to a private sector employer – that a ban on wearing conspicuous, large-scale signs of conviction does not, in principle, constitute direct discrimination, unless the prohibition criterion is inextricably linked to one or more specific religions or convictions (for example, an explicit ban on wearing the headscarf only). However, the CJEU noted that this did not appear to be the case here.

The CJEU also confirmed its consistent position that a domestic rule prohibiting the visible wearing of any sign of conviction in the workplace can constitute a difference in treatment indirectly based on religion if that – apparently neutral – rule in reality results in a particular disadvantage for persons adhering to a specific religion. Furthermore, the CJUE stated that such a difference in treatment would not, however, necessarily constitute indirect discrimination, provided that it was objectively justified by a legitimate aim and that the means used were appropriate and necessary. The CJEU considered that the provision of the work rules in the case at hand can be considered as pursuing a legitimate aim.

The CJEU pointed out, however, that – in order to ensure the proper application of this aim – the ban must be applied consistently and systematically, which means that wearing any sign, however small, would be likely to undermine the very consistency of this policy. As a result, the CJEU considered that no visible manifestation of any convictional signs whatsoever should be permitted when employees are in contact with users of the public service or with each other, for such a policy to be consistent with the objective pursued.

According to the CJUE, it is exclusively for the national court to assess the facts in order to decide whether the ban on wearing convictional signs by the municipality meets a legitimate aim and whether the means implemented are appropriate and necessary, while balancing the interests at stake, namely, on the one hand, freedom of thought and religion, and, on the other, the principle of neutrality of the public service.

In a case where the recruitment process of a woman wearing a headscarf was interrupted by the City of Brussels after she indicated that she refused to remove it during working hours, the Brussels Labour Court fully applied this case law of the CJEU in a judgment dated 15 February 2024. The Brussels Labour Court ruled that wearing religious symbols of any kind was prohibited for all members of staff, and that this was part of a coherent and systematic policy. The measure taken was therefore considered suitable for achieving the legitimate objective pursued by the City of Brussels, and therefore appropriate.

In view of this case law, it is clearly established that employers (in the public sector in this case) can decide to apply a policy of neutrality to all employees, whether or not they are in contact with the public. However, it is important that such a policy is applied consistently and systematically, without distinction between beliefs or signs.

Sarah Lamarti Messous

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