A ready-to-wear retailer introduces a neutrality clause in its internal regulations, prohibiting only the wearing of religious symbols by all its employees.

Marie, who has worked in the accounts department for four years, is directly affected by this new clause because she wears a headscarf for religious reasons.

What does the law say?

The right to respect for private life, as guaranteed by Article 8 of the European Convention on Human Rights, encompasses not only the physical and moral integrity of the individual, but also the right to identity and personal self-determination. Choices about appearance and the wearing of certain items of clothing, whether in public or private, are an expression of one’s personality, and therefore of private life within the meaning of article 8 of the ECHR. Religious symbols are an integral part of the identity of those who wear them.

The wearing of religious symbols is also protected by the fundamental right to freedom of worship, which concerns both personal conviction and the appearance that manifests membership of a religion.

Discrimination, whether direct or indirect, on the grounds of real or assumed religious affiliation, is prohibited by numerous national, European and international laws.

Freedom of worship and the prohibition of religious discrimination are guaranteed, within certain limits, by Articles 9 and 14 of the European Convention on Human Rights (ECHR).

In accordance with article 9-2 of the ECHR, “the freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. “.

Consequently, a private company cannot, a priori, discriminate directly or indirectly against an employee wearing a headscarf in the context of their employment relationship.

According to the European Court of Human Rights, ” pluralism, tolerance and openness “characterize a democratic society “. Admittedly, a balance must sometimes be struck between interests that may clash, but this does not mean that the majority opinion can have an impact on the practice of a person who makes religion a major focus of his or her life, who may ” to be able to communicate their convictions to others “.

A balance of interests must therefore be struck between employees’ religious freedom and the needs of the company.

In this case, Marie’s company introduced the principle of neutrality in its internal rules for all employees, and only with regard to the exercise of religious freedom.

In Belgium, neutrality may apply, under certain conditions, to employees who are required to adopt a neutral attitude when carrying out their duties. This means that they must refrain from publicly expressing their political, religious or philosophical convictions in the course of their work. This restriction applies to the expression of all beliefs.

For private structures, the Court of Justice of the European Union clarifies the framework. A private company could provide for restrictions on the wearing of religious symbols under certain conditions, notably taken up by two rulings of March 14, 2017, framing the insertion of a neutrality clause in the internal regulations of a private company.

• This neutrality clause must pursue a legitimate aim;
• It must be applied consistently and indiscriminately, regardless of workers’ religious, political or philosophical convictions;
• It must be a means necessary to the end pursued;
• Any restriction must therefore be justified by the nature of the task to be performed and proportionate to the aim pursued.

What should I do?

• Request the company’s internal regulations to verify the existence of a neutrality clause.
• Check whether such a clause applies to all employees, regardless of their beliefs.
• Require a written request to remove a religious symbol and the reasons for such a request.
• Inform the employer of current legislation and relevant court rulings.
• Bring any disputes to the attention of the union delegation, the Comité pour la prévention et la protection au travail (CPPT) or any other employee representative in your company.
• Ask a member of the union delegation to give an explicit reasoned opinion on the compliance of this neutrality clause.
• In the absence of a neutrality clause or an irregular clause, contact UNIA to report discrimination.
• Contact the CCIE’s legal department, which will support you at every stage.

APPLICABLE REFERENCES

Source :

• Article 9 of the European Convention on Human Rights.
• Article 16 of the Charter of Fundamental Rights of the European Union.
• Article 18 of the International Covenant on Civil and Political Rights.
• Articles 10, 11 and 19 of the Belgian Constitution.
• Law of May 10, 2007 to combat certain forms of discrimination.
• CJEU February 12, 1974 : Giovanni Maria Sotgiu v Deutsche Bundespost.
• CJEU March 14, 2017: Asma Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole SA.
• CJEU March 14, 2017: Achbita v G4S Secure Solutions.
• United Nations Convention on the Elimination of All Forms of Discrimination against Women.
• ILO Convention No. 111 concerning Discrimination in Respect of Employment and Occupation ;
• Council Directive 2000/78/EC of November 27, 2000 establishing a general framework for equal treatment in employment and occupation.
• Directive 2006/54/EC of the European Parliament and of the Council of July 5, 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (Directive recast).