An article by Michał Tomczak in the Rzeczpospolita daily (Kadry i Płace).
These two judgments of the Court of Justice of the European Union, issued in 2017, regarding the wearing of an Islamic headscarf by female employees gained considerable publicity, although, as is usually the case with publicity, it did not make much use of the understanding of the entire, rather subtle interpretation of European law made by the Court. It seems to me that the right-wing circles especially accepted the message from these judgments that they “finally took up their job”. This is, of course, a somewhat obscure simplification.
Hijab as a leitmotifn.
Case C-157/15 was intended to take a position on a question from the Belgian Court of Cassation (highest court, in fact third instance). The Belgian company G4S providing reception services, as stated in the judgment, terminated the employment contract with a Muslim woman who, contrary to the company’s position, did not want to give up wearing an Islamic headscarf at work. The defendant company adopted a ban on manifesting its political, philosophical or religious beliefs or rituals related to them by means of symbols in the workplace. The Belgian court making the reference for a preliminary ruling was of the opinion that such a prohibition was a neutral criterion because it was addressed to all employees and therefore was not discriminatory.
On the other hand, in case C-188/15, the French court of cassation also referred the Court for a preliminary ruling. In this case, the IT company Micropole terminated an employment contract with a Muslim woman who did not want to accept the requirement not to wear an Islamic headscarf while working. In this case, the customer’s request was indicated as the reason for terminating the contract. The Court of Cassation took a position in which it indicated that, in its opinion, the client’s request did not constitute a significant or lawful criterion – not constituting a form of discrimination – justifying the placing of economic or commercial interests over the fundamental freedom of an employee.
From the perspective of the complainants (both of which were supported by non-governmental human rights organizations), the two cases are very close to each other. In both cases, it was about the right to wear a headscarf by an employee and at work, i.e. the right to use and display a symbol of religion. Both judgments were handed down on the same day, 14 March 2017, the composition of the courts was the same, and so was the judge-rapporteur. The verdict in both cases – fundamentally different. It is clear that the Court thus wished to strengthen the understanding it promoted of the concept of discrimination.
Where are the differences
The main differences in both cases are shared by the justifications for the prohibition of wearing the Islamic headscarf adopted by both challenged companies. This may, of course, mean an excessive relativity in applying anti-discrimination laws, as we can ask if a French company (Micropole) had adopted the same justification for prohibiting employees from wearing Islamic headscarves (or rather – presenting any religious or philosophical symbols) as GS4 did would she be able to defend her ban? In other words, you can ask whether what the employer writes in the work regulations is of key importance?
It would seem so.
A Belgian company, G4S is a subsidiary of the world’s largest security company, also providing many other services, employing over 500,000 people. people all over the world. Admittedly, the reasoning of the judgment indicates that this is one of the many industries in which the company operates. In this case, the company claimed that its activities had long been an unwritten rule prohibiting the wearing of symbols of political, philosophical or religious beliefs at work. Whether it was so or not, the company also made sure to include ideological neutrality in its work regulations by not demonstrating religious symbols at work. Thus, she could invoke the argument according to which this neutrality does not constitute a restriction directed against workers professing and demonstrating this one religion, which (until 2006) raises the most fears in Western Europe. This inclusion in the work regulations of the principle of neutrality took place two weeks before the termination of the employee’s employment contract, which the Tribunal does not comment on, although it should, because it shows a certain arrangement in terms of the sentence.
In this context, in the “Belgian” case, a ruling was issued in which the Court considered it necessary as a condition for the validity of the prohibition of the use of religious and political symbols that such a prohibition should be part of the company’s policy and not be directed against a specific group of employees. Such a prohibition is to be an objectively justified legitimate aim of precisely neutrality of politics, and the means used for this purpose are to be appropriate and necessary.
On the other hand, in the second case, the “French” company, did not invoke the objective objective of neutrality, but at the client’s request. Such an argument was deemed insufficient to prohibit the use of an Islamic headscarf or any other religious or political symbol.
Out of pure professional curiosity, one could ask the already mentioned question whether the Tribunal would treat Micropole differently if it entered into its work regulations the same provisions as G4S. Of course, when referring a case to a national court, the Court always indicates the need to examine what is really the case, but it is known that civil courts all over the world have difficulties with this and therefore are willing to follow the content of formalized documents.
I also have the impression that the verdicts in both cases could have been influenced by the industry of both companies. Micropole is an IT company, an IT specialist has a different, formal contact with the client than the receptionist. Reception services are more related to the issue of visual “message” sent by an employee. In truth, however, I am not convinced that such considerations should be so important that the two judgments are so radically differentiated, since it is so principled.
What is the moral for ours, in a country where both religious and political symbols are a source of ever greater differences, I am afraid of differences and conflicts?
I believe that, first of all, a private entrepreneur has an open path to build a culture of neutrality in the scope of his choice. If he really wants the company to appear outside without this kind of connotation, he can direct the company in this direction. However, he must do it consistently, in the same relation to those symbols which suit him personally and to those which he does not or. It must do it not only formally, in the content of the regulations, but also not allow itself to deviate from such rules in practice. That is, to be concerned about the company’s religious or political neutrality really, and not only in terms of your preferred choices or critical situations.
First of all – the implementation of such a model of the company’s operation is the more difficult, the more outward-looking and contact-oriented the company’s activities are, so it is more difficult – especially in large service companies. Secondly – in the light of the judgments described above, this is sufficient to defend against the allegation of discrimination – unfortunately it is not known. Nevertheless, the path was clearly indicated by the Court of Justice of the European Union.