VISIBLE FORMS OF EXPRESSION OF POLITICAL, PHILOSOPHICAL OR RELIGIOUS BELIEFS IN THE WORKPLACEE

#40Visible forms of expression of political, philosophical or religious beliefs in the workplace

Court of Justice of European Union (CJEU) took under consideration case of two employees who wore a Muslim headscarf in joint cases C-804/18 and C-341/19 WABE a MH Müller Handel. In said cases, CJEU dealt with the case of two female workers who wore an Islamic headscarf at work. One of them was asked by her employer to put it down while fulfilling work obligations. As she twice rejected the order, she was warned that she was violating the employer's rules and twice sent home.

One of the employees filed a lawsuit in a labor court and the other one filed a lawsuit for annulment of the employer's orders and for damages, while only the second one succeeded in court. Following an employer's appeal, the CJEU has been asked to rule regarding possible direct or indirect discrimination when the employer asks his employee as a saleswoman to remove a large headscarf from her head, which is an expression of her religious beliefs and beliefs, and under what conditions is the difference in treatment indirectly based on religion or belief justified and what facts must be taken into account when examining the appropriateness of such a difference in treatment.

Law applied this area is Council Directive 2000/78/EC of 27 November 2000, which establishes a general framework for equal treatment in employment and occupation. CJEU has ruled that in order for a undertaking, that is also an employer, to act towards clients or customers in a neutral or apolitical way and without conviction or inclination to any religion or philosophical trend, the employer may prohibit this form of expression of religion, belief, philosophy or politics in any form, as it violates the principle of equal treatment and therefore there is a legitimate requirement for the employer to avoid conflicts and the principle of employer neutrality is justified.

However, Member States may decide more favorably on the basis of the right to freedom of thought, conscience, religion and belief within the meaning Article 10 of the Charter of Fundamental Rights and Freedoms. The relevant facts for determining such a requirement are specifically customers´ and users´ rights and legitimate expectations of users, and especially in the field of education, wish of parents that their children will be educated by persons who do not express their religion or belief when in contact with children.

An employer's neutrality policy may only be justified if it relates to any visible form of expression of religious belief. It is therefore important to apply it under the same conditions.