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Headscarf ban at work: neutrality or discrimination …?

| Rudi Desmet / Jonas Jespers

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A recent judgment in Brussels on the headscarf ban has created quite a stir in the press and has led to a number of political discussions. For many companies, the question will now arise again whether a policy of neutrality is still permitted?

In the judgement of 3 May 2021 by the French-speaking labour court of Brussels, the Brussels public transport company STIB was condemned for (direct) discrimination on the basis of religious beliefs and (indirect) discrimination on the basis of gender. The STIB had refused to employ a woman wearing a headscarf. This refusal was motivated by STIB's policy of neutrality.

However, this judgment is not the only one on this matter.

For a proper understanding, we have to go back to the original European legal source, namely Directive 2000/78/EC, which introduced a general framework for equal treatment. This directive was transposed into Belgian law by, among others, the anti-discrimination law of 10 May 2007.

Not so long ago, the European Court of Justice ruled in the Achbita and Bougnaoui cases (ECJ, 14 March 2017) on the question of whether an employer discriminates against a female employee by firing her for wearing a headscarf.

Well, contrary to the Brussels judgment, the ECJ ruled that a company may indeed provide in internal regulations that employees, who come into contact with the public, must dress neutrally and thus may not wear religious, philosophical or political symbols.

The Achbita case was continued before the labour court in Ghent after the Court of Justice's decision. Its judgment of 12 October 2020 shows that Ms Achbita refused to accept the (unwritten) neutrality policy that applied to all employees of the company. After an amendment to the labour regulations, a formal neutrality policy was introduced. All employees were required to wear a uniform and religious symbols were no longer allowed. Because she refused to stop wearing her headscarf, she was dismissed with severance pay.

According to the Labour Court of Appeal in Ghent, the headscarf ban therefore did not constitute (indirect) discrimination based on religious belief.

Conclusion: The court weighs and balances, and decides in the end on the basis of the concrete elements of the case. But the prudent employer will - if desired - introduce a policy of neutrality in the labour regulations in good time.

To be continued…

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