2023/4 Neutrality policy of City of Brussels not found discriminatory (BE)

Gautier Busschaert

Gautier Busschaert is an attorney at Van Olmen & Wynant.

2023/4 Neutrality policy of City of Brussels not found discriminatory (BE)

In an interim ruling regarding the refusal by the City of Brussels to employ a female candidate wearing an Islamic headscarf, the Brussels Labour Tribunal considered that such a public authority is allowed to pursue a neutrality policy concerning functions that involve contact with the public, thus concluding that the City of Brussels did not discriminate against a female candidate when refusing to employ her on the ground that she wore a religious symbol.

Summary

Legal background

Belgium’s Federal Law of 10 May 2007 aimed at combating discrimination lays down the basic framework for anti-discrimination rules in Belgium.This law prohibits all forms of direct and indirect discrimination based on the protected grounds laid down therein, including religious and philosophical convictions. The notion of ‘religious conviction’ covers not only the fact of having a religious conviction but also the manifestation of that conviction in public (CJEU, 14 March 2017, Achbita, Case C-157/15).According to this law, a situation of direct discrimination arises when on the basis of one of the protected grounds a person is treated less favourably than another person in a comparable situation and provided that it cannot be justified by a legitimate aim pursued by necessary and appropriate means.A situation of indirect discrimination arises when an apparently neutral provision, criterion or practice is likely to place persons characterised by one of the protected grounds at a particular disadvantage compared to other persons. It might be allowed, but it is prohibited if it cannot be justified by a legitimate aim pursued by necessary and appropriate means.Regarding the wearing of signs of conviction in the public sector, the principle of neutrality applies to public authorities. This is a constitutional principle which flows implicitly from Articles 10 and 11 of the Belgian Constitution dedicated to equality and non-discrimination. This principle applies to the agents of public authorities when exercising their functions. It implies that they must be impartial when acting on behalf of the public authority in their dealings with citizens.Should they also appear neutral? According to the Belgian Council of State, a policy of exclusive neutrality can be adopted for agents for whom the mere fact of wearing religious, philosophical and/or political symbols could raise the feeling amongst the general public that they are not executing their duties in an impartial manner. So functions related to the exercise of functions of a public authority may be subject to exclusive neutrality, whereas the question as to whether the neutrality principle may also apply to agents fulfilling purely technical or executive functions should be answered based on the concrete circumstances of the case.

Facts

The case at hand involved a female candidate of Islamic faith who had not been hired by the City of Brussels on the ground that she wore a headscarf which she would refuse to take off during working hours. The City of Brussels stated that this was incompatible with the neutrality policy provided by the internal employment regulations and the ethics code and decided not to hire her on this ground. The job for which she applied involved direct contact with the public and could not be considered as ancillary.

Decision

The female candidate argued primarily that the City of Brussels was guilty of direct discrimination because they refused to hire her when she expressed her desire to manifest her religious conviction. Subsidiarily, she argued that the City of Brussels was guilty of indirect discrimination given that a general prohibition on wearing religious signs disadvantaged a particular group of persons.The City of Brussels claimed that the refusal was justified by the ‘exclusive neutrality policy’ enshrined in the internal employment regulations, the ethics code and the Belgian Constitution. It also asserted that a public authority has the obligation to be and to appear to be neutral.The Tribunal’s reasoning is in line with the case law of the CJEU on this matter (see in particular CJEU, 14 March 2017, Achbita, Case C-157/15; CJEU, 15 July 2021, Joined Cases C-804/18, Wabe & C-341/19, MJ; CJEU, 13 October 2022, Case C-344/20, S.C.R.L.).Regarding the main claim, the Tribunal concluded that there was no direct discrimination. The general prohibition on wearing religious symbols during working hours applies to everyone and every religious and philosophical conviction without distinction. The Tribunal saw no indication that the prohibition would have been applied differently in this particular case.Secondly, the Tribunal examined whether the female candidate was indirectly discriminated against. This was the case, so that the Tribunal checked whether the refusal could be justified by a legitimate aim that can be achieved by necessary and appropriate means. The Tribunal took note that the City of Brussels pursued an exclusive neutrality policy. The Tribunal noted that the CJEU has already acknowledged that it is legitimate for a private employer to pursue an exclusive neutrality policy for functions involving contact with clients and when this responds to a genuine need.The Tribunal reasoned that this is a fortiori also the case for a public employer to whom the constitutional principle of neutrality and impartiality applies. The Tribunal also noted that the CJEU has been asked to rule on a preliminary question regarding the public sector in this matter, which ruling is awaited. More particularly, the Labour Tribunal of Liège asked (Case C-148/22):

Can article 2(2)(a) and (b) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation be interpreted as allowing a public administration to organise a completely neutral administrative environment and thus prohibit the wearing of religious symbols by all staff members, whether or not they are in direct contact with the public?

However, the Tribunal did not consider that it was necessary to wait for this ruling since the functions of the candidate did involve contact with the public and so already fell within the current scope of the CJEU’s case law.Further, the Tribunal was of the opinion that a general prohibition on wearing convictional signs at work was a necessary and proportionate means to achieve the goal of a neutral and impartial public authority for functions involving contact with the public.The Tribunal concluded that the City of Brussels did not discriminate against the female candidate when refusing to hire her.

Commentary

This ruling is worth mentioning because it concerns the public sector whereas, to our knowledge, the case law of the CJEU on convictional signs is related to the private sector only. The preliminary ruling mentioned in the decision will be interesting in that respect because the CJEU has been asked for the first time whether a different approach can be taken for the public sector, which would rely on the principle of neutrality for creating a completely neutral administrative environment where the wearing of religious symbols by all staff members, whether or not they are in direct contact with the public, would be forbidden.The answer that will be given is not relevant for this case since the function of the candidate would have involved contact with the public. This notwithstanding, one may find it difficult to find arguments appropriate to the public sector which would justify such a two-speed case law where neutrality would be accepted everywhere in the public sector but only for functions involving contact with the public in the private sector.In any case, as the Labour Tribunal rightly considered, we do not see any valid reason not to apply the Achbita line of case law to functions in the public sector which involve contact with the public, especially considering that most public authorities, contrary to private companies, are bound by a duty of neutrality and impartiality imposed by the law whatever its constitutional form.Finally, this case illustrates the limits of the judicial approach whereby a judge rules on a case-by-case basis on the matter referred to them. The City of Brussels can keep its neutrality policy because it did not discriminate against the female candidate who filed the claim. On the other hand, its policy continues to apply to all functions, even those that do not involve contact with the public. It remains to be seen whether this policy will be allowed to stand as it is once the CJEU have ruled on the matter.

Comments from other jurisdictions

Denmark (Christian K. Clasen, Norrbom Vinding): For years it has been discussed to what extent employers can legally implement and enforce workplace policies prohibiting any kind of manifestation or practice of religion in the workplace, including clothing or symbols. Continued interest in this issue may partly be due to the fact that Directive 2000/78/EC does not contain an express obligation for employers to accommodate an employee’s wish to express or practice their religion.As in Belgium, in the past the courts of Denmark have given several judgments on the issue of prohibition against religious symbols or clothing in the workplace, in particular cases concerning female employees’ right to wear the Islamic headscarf in the workplace. Some of these judgments were given long before the ECJ for the very first time ruled on religious discrimination in Case C-157/15 (Achbita) in 2017.The debate on this legal issue peaked during a case in the Danish Supreme Court in 2005. The case concerned a workplace policy in a chain of supermarkets according to which employees with customer contact were required to wear the workplace uniform only. Thus, headwear was banned unless it was part of the uniform, which was, for instance, the case in the food-producing departments.An employee who worked as a cashier persistently maintained that she wanted to wear an Islamic headscarf, for which reason she was summarily dismissed. It should be noted that the employer offered the employee a position in a supermarket department where the employees did not have customer contact and, therefore, was not required to wear a uniform. The employee, however, declined this position where she would have been allowed to wear headwear.During the proceedings, the employer explained that the reason behind the dress code was, for instance, based on a wish for a politically and religiously neutral appearance, and that the dress code was being pursued in a systematic and consistent way regardless of the employees’ cause for wearing headwear, such as caps, bandanas and headscarves.Based on the merits of the case, the Supreme Court held that the employer’s enforcement of the workplace dress code did not constitute indirect discrimination in relation to female employees wishing to wear the Islamic headscarf. In its reasoning, the Supreme Court expressly attached importance to the fact that the workplace policy only applied to employees with customer contact. Accordingly, the Supreme Court’s ruling in 2005 appears to be in compliance with the subsequent decisions by the ECJ on this matter (in particular Case C-157/15 (Achbita), Joined Cases C-804/18 (Wabe) and C-441/19 (MJ), and Case C-344/20 (S.C.R.L.)).Although the Danish case, as well as the above-mentioned preliminary rulings from the ECJ – in contrast to the Belgian case – concerned the enforcement of a workplace policy of a private company, it is our view that it will probably not make any difference if a case concerns a private or public company when it comes to the assessment of whether a workplace policy requiring neutrality covering all employees regardless of whether or not they have customer contact can be considered objectively justified by a legitimate aim.The reason is that it follows from ECJ case law on this matter that an employer’s wish to pursue a policy of neutrality, even if it constitutes a legitimate aim in itself, is not sufficient as such to objectively justify a difference of treatment indirectly based on religion or belief, since such justification can be regarded as being objective only where there is a genuine need on the part of the employer (see in particular Joined Cases C-804/18 (Wabe) and C-441/19 (MJ) para. 64). A genuine need as such is difficult to establish with regard to employees with no customer contact – also when it comes to public authorities that may be subject to a duty of neutrality imposed by law.However, this is yet to be clarified and it will therefore be interesting to see the outcome of the request for a preliminary ruling referred to the ECJ by the Labour Tribunal of Liége in Case C-148/22.

Germany (Othmar K. Traber, Ahlers & Vogel Rechtsanwälte PartGmbB): German jurisprudence has also dealt with the so-called headscarf cases. This was prompted, for example, by a neutrality law passed by the Berlin local government which provided similar regulations as the City of Brussels neutrality law. In contrast to the Brussels Labour Tribunal, German courts established jurisprudence which emphasises religious freedom.German anti-discrimination legislation, like Belgian legislation, is based on the distinction between indirect and direct discrimination. Whereas direct discrimination, which is linked to a penalised ground of discrimination, cannot be justified, indirect discrimination can be justified.The provisions at issue in this case, like the provisions at issue in the case of the Berlin Neutrality Act, specify an abstract and fundamental prohibition on the wearing of religious or ideological signs and garments during the working time. Direct discrimination cannot be established in both legal systems and against the background of Achbita case law, as no unequal treatment takes place in connection with a penalised discriminatory feature. However, both courts correctly recognised indirect discrimination. From this point on, the lines of jurisdiction in the legal systems differ. While the Belgian court is content with the constitutional principle of neutrality as a justification, according to the German line of jurisprudence, higher requirements must be met in order to justify indirect discrimination in regard to religious reasons (Federal Constitutional Court, rulings from 27 January 2015 – 1 BvR 471/10, 1 BvR 1181/10).The regulation in question must pursue a legitimate purpose. In the case of public authorities, this purpose lies in the fulfilment of the principle of neutrality. The achievement of the objective must at least be promoted by the regulation. In the case of an abstract and fundamental ban on the wearing of religious or ideological signs and garments, this is the case, as this ban gives the greatest possible respect to the principle of neutrality.In addition, however, the individual circumstances of the case must be taken into account. A ban is only compatible with the Constitution if there is a concrete danger to the purpose pursued. In this case, therefore, if there is a concrete danger to the observance of the principle of neutrality. Within this question, the concrete circumstances in which the employee works are considered. Whether a danger to the principle of neutrality can be demonstrated in an individual case depends on the concrete activity and the associated contact with citizens. However, the negative freedom of belief is interpreted to mean that there is no protection against confrontation with other faith or beliefs. Furthermore, it must be taken into account whether the citizen can evade the profession of faith or belief. This is not the case with judges, for example, which is why the principle of neutrality is applied more strictly here than with a public authority employee.It follows from these considerations that a general or fundamental ban on ideological or religious clothing in Germany would not stand because the individual circumstances are not considered by the provision. Referring to this specific case, a German court would have looked at the individual circumstances and would probably not have found any danger to the principle of neutrality, as there is no protection against confrontation.

Germany (Susanne Burkert-Vavilova, Luther Rechtsanwaltsgesellschaft): There is no German employment case law available on the issue of creating a completely neutral administrative environment in the public sector, where the wearing of religious symbols by all staff members, whether or not they are in direct contact with the public, would be forbidden. In Germany, however, the thorough ban of staff members’ religious symbols in a public sector workplace is hard to imagine in view of the constitutionally protected rights of the individual. In this respect, it will be interesting to see how CJEU will rule on Case C-148/22.Available highest employment case law in Germany on the issue of headscarf prohibition in public sector employment is found in the school sector. With its ruling of 27 August 2020 (8 AZR 62/19), the Federal Labour Court held that the Berlin Neutrality Act (Berliner Neutralitätsgesetz), which prohibited teachers in public schools, among others, from wearing an Islamic headscarf, must be interpreted as in conformity with the Constitution to the effect that it prohibits the wearing of the headscarf only if and to the extent there is a concrete danger to the peace of the school or to the neutrality of the State.The Court ruled that the claimant, who was applying for permanent appointment to the Berlin school service, was directly discriminated against because she was not admitted to the selection procedure on account of her headscarf based on the Berlin Neutrality Act. The claimant was awarded compensation on account of such discrimination. The General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, ‘AGG’) as a legal basis both for establishing the discrimination as well as awarding compensation is, like the Belgian Federal Law of 10 May 2007, derived in large part from Directives 2000/43/EC and 2000/78/EC and hence is likely to follow the same general principles.The Federal Constitutional Court found, however, that the work of pedagogic staff in the public school service is only conditionally comparable with public employment – here: as a legal trainee in the court room. The Court was called on with the constitutional complaint of a legal trainee, who challenged the prohibition to wear a headscarf during practical legal traineeship in the courtroom. (Considering that legal traineeship in Germany is a training relationship under public law, a legal trainee does not fulfill the employee status in the absence of a private law employment contract.) The Court held that – unlike in the area of community school service which according to the Court was supposed to reflected religiously pluralistic society – in the judiciary the State confronts the citizen in a classically sovereign manner and therefore with greater interference. In careful consideration of the legal interests involved, the Court finally ruled (decision of 14 January 2020 – 2 BvR 1333/17) that the legislature may in fact prohibit Muslim female legal trainees from wearing a headscarf during their practical training for the sake of ideological-religious neutrality.For now, the court decisions for employed teachers in public schools on the one hand and for the public law training relationship, among others in the judicial service, on the other hand, make it clear that – depending on the claimed degree of ideological-religious neutrality and publicly relevant interaction of the person concerned – the decision as to whether the wearing of a headscarf (or another obvious confessional symbol) may be prohibited or not will differ. For Germany, the thorough ban of staff members’ religious symbols in a public sector workplace, however, is hard to imagine in view of the constitutionally protected rights of the individual.

United Kingdom (Bethan Carney, Lewis Silkin LLP): The defence of neutrality is not commonly used in claims of religious discrimination in the UK, and UK businesses and public sector organizations tend not to have explicit policies of neutrality in which all manifestations of religious faith (or political opinion) are banned. UK companies do sometimes have dress codes which seek to limit manifestations of faith but this is generally in order to project a uniform and professional image rather than because of a policy of neutrality. The most well-known example of this was British Airways’ dress code in 2010, which was the subject of a claim to the European Court of Human Rights (ECtHR) (Eweida – v – British Airways plc [2013] IRLR 231). British Airways (BA) had a dress code that permitted religious clothing or jewellery which the tenets of the religion deemed was obligatory for faith observance (such as turbans and hijabs) but did not permit what BA saw as purely voluntary expressions of faith (such as the cross Ms Eweida wanted to wear). It was notable in this case that BA was not trying to impose a policy of neutrality but was seeking to project a particular corporate image. As is well known, the ECtHR found that Ms Eweida’s human rights had been breached. There have been numerous other cases where religious symbols have been banned at work but they have generally been banned for reasons specific to that workplace, such as health and safety requirements in restaurants or hospitals which prohibit wearing any jewellery. In one case a Muslim teaching assistant was suspended from work for insisting on wearing a full face veil, which the school argued was inhibiting the pupils’ learning because they could not see her face. The school had a policy that teachers could not cover their faces (Azmi – v – Kirklees Metropolitan Borough Council [2007] ICR 1154). These cases are analyzed as cases of indirect discrimination (because the requirement would apply to everyone whether religious or not and whatever religion) and the focus of the cases is on whether or not the respondent has a legitimate aim and whether their rules are proportionate.

The Netherlands (Peter Vas Nunes, former EELC Editor-in-chief): As the author of this case report notes, existing ECJ case law on ‘neutrality policy’ at work – in contrast to ECtHR case law (see inter alia ECtHR 26 November 2015 application 64846/11 (Ebrahimian)) – is limited to private sector employers. In this Belgian case, the Tribunal reasons (1) that the ECJ acknowledges (see Achbita, etc) that it is legitimate for a private sector employer to pursue a neutrality policy where client contact is involved and the policy responds to a genuine need; (2) that this is even more so (‘a fortiori’) in the public sector, where the constitutional principle of neutrality applies. The Tribunal may well be right on this point. There is, indeed, much to be said for holding that public sector employers enjoy a greater margin of appreciation in this regard than private sector employers. On the other hand, though, the reason the ECJ allows private sector employers, within certain limits, to pursue a ‘neutrality policy’ has to do with their freedom to conduct a business (Article 16 of the Charter of Fundamental Rights of the European Union). Does a public sector employer ‘conduct a business’? Perhaps. In Achbita, the ECJ held (paragraphs 38, 39):

An employer’s wish to project an image of neutrality towards customers relates to the freedom to conduct a business that is recognised in Article 16 of the Charter and is, in principle, legitimate, notably where the employer involves in its pursuit of that aim only those workers who are required to come into contact with the employer’s customers. An interpretation to the effect that the pursuit of that aim allows, within certain limits, a restriction to be imposed on the freedom of religion is moreover, borne out by the case-law of the European Court of Human Rights in relation to Article 9 of the ECHR (judgment of the ECtHR of 15 January 2013, Eweida and Others v. United Kingdom, CE:ECHR:2013:0115JUD004842010, paragraph 94).

The author of this case report draws attention to a case that is pending in the ECJ, Case C-148/22 (Commune de Ans). Unfortunately, at the time of writing the (lengthy) judgment by the referring Tribunal du travail de Liège is available only in the French language. It is worth reading. Referring to the ECJ’s ruling in Wabe, the Tribunal was more careful than the Tribunal in the case reported here (‘a fortiori’), merely remarking (page 41), “Cet arrêt est rendu dans le domaine des relations de travail dans le secteur privé, et le context juridique, historique et factual est sensiblement différent de celui qui existe dans une administration communale. Mais certains parallélismes, similitudes et comparaisons sont possible”.The employee in the Commune de Ans case, a town council civil servant with public contact wanting to work wearing a head scarf, was initially forbidden to do so on an individual basis. Later on, the employer issued regulations applying to the entire staff prohibiting non-neutral attire. The Tribunal considered the individual prohibition to constitute direct discrimination on grounds of belief, the regulations merely discriminating indirectly. Interestingly, and recognizably for many practitioners of employment law, the Tribunal noted, “Les contours des notions de distinction directe et indirecte sont difficiles à cerner”.The author makes repeated reference, as does the Tribunal in the reported case, to ‘exclusive neutrality’. I had not previously come across this useful expression, which does not seem to be used by Dutch employment practitioners. It denotes equal treatment of employees through the elimination of religious symbols, as opposed to ‘inclusive neutrality’, which denotes equal treatment by allowing such symbols.A flow chart showing the possible situations regarding ‘neutrality policies’ could look like this:

Public sectorPrivate sector Face to face contact with cli‍ents: yes/noFace to face contact with cli‍ents: yes/noAlternative position available: yes/noAlternative position available: yes/no

Subject: Religious Discrimination Parties: X – v – Ville de Bruxelles Court: Brussels Labour Tribunal Date: 5 December 2022 Case number: 21/4050/A

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