According to a recent decision of the European Court of Justice, employers may prohibit the wearing of any visible sign of political, ideological or religious convictions in the workplace under narrow conditions. A blanket ban on headscarves remains inadmissible.
On July 15, 2021, the ECJ decided in two preliminary rulings that an internal company rule prohibiting the wearing of visible signs of political, philosophical or religious conviction at the workplace does not constitute direct discrimination on the grounds of religion or spiritual belief against employees who follow certain dress codes on the basis of religious precepts, provided that the rule is applied generally and indiscriminately, i.e. against people of all religions and spiritual beliefs alike. The employer’s intention to pursue a policy of political, ideological and religious neutrality towards its customers or users may justify such an internal rule, provided that the neutrality policy can be shown to meet a genuine need of the employer, the difference in treatment is appropriate to ensure the proper application of the neutrality policy, and the prohibition is limited to what is strictly necessary. The employer must therefore prove that there was or currently is a sufficiently concrete risk to the objective, which the internal regulations seek to mitigate, such as for example a risk of unrest within the company or a loss of earnings.
The Hamburg Labor Court (ECJ: C-804/18) and the Federal Labor Court (ECJ: C-341/19) each submitted questions in that regard to the ECJ for a preliminary ruling.
The first case (C-804/18) concerns a Muslim curative education nurse. Her employer, an interdenominational children’s daycare center, pursues a policy of political, ideological and religious neutrality by means of a “service instruction on compliance with the requirement of neutrality”. This instruction applies to employees with customer contact and requires them not to make any external political, ideological or religious statements to parents, children and third parties. It also prohibits the wearing of visible signs of political, ideological or religious convictions if employees have contact with parents or their children. The aim of the instruction is to ensure that children are not influenced by teachers in this respect. Contrary to the instruction, a Muslim employee repeatedly appeared at the workplace wearing an Islamic headscarf. She took legal action against the warnings issued and requested that the warnings be removed from her personnel file.
The second case (C-341/19) concerns an employee of a German drugstore chain. The employee wears an Islamic headscarf and was requested by the employer to remove the headscarf at the workplace several times in the course of her work. Since she refused, she was assigned to another position that allowed her to wear the headscarf. Subsequently, the employee received instructions from her employer which referenced an internal company guideline, telling her not to wear conspicuous, immediately visible signs of a political, ideological or religious nature at the workplace. The internal guideline was intended to prevent social conflicts within the company, as tensions had arisen in the past in connection with political, ideological or religious convictions. The employee then sued for a court to decide that the directive was invalid and for compensation for the non-material damage suffered as a result.
The judgments reached through the preliminary ruling proceedings are binding on the competent German courts in each case. They must interpret the questions referred for a preliminary ruling in compliance with the rulings of the ECJ. In doing so, however, the national courts retain a margin of interpretation. When examining whether indirect unequal treatment on the grounds of religion or spiritual belief is appropriate, more favorable national regulations for the protection of religious freedom may be taken into account. It will therefore be interesting to further follow the two proceedings before the Hamburg Labor Court and the Federal Labor Court.