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Religious Clothing and Symbols in Employment a Legal Analysis of the Situation in the EU Member States

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Religious Clothing and Symbols in Employment a Legal Analysis of the Situation in the EU Member States European network of legal experts in gender equality and non-discrimination Religious clothing and symbols in employment A legal analysis of the situation in the EU Member States Including summaries in English, French and German Justice and Consumers EUROPEAN COMMISSION Directorate-General for Justice and Consumers Directorate D — Gender equality Unit JUST/D2 European Commission B-1049 Brussels EUROPEAN COMMISSION Religious clothing and symbols in employment A legal analysis of the situation in the EU Member States Author Erica Howard November 2017 Directorate-General for Justice and Consumers 2017 The text of this report was drafted by Erica Howard, coordinated by Catharina Germaine and Isabelle Chopin for the European network of legal experts in gender equality and non-discrimination. Europe Direct is a service to help you find answers to your questions about the European Union. Freephone number (*): 00 800 6 7 8 9 10 11 (*) The information given is free, as are most calls (though some operators, phone boxes or hotels may charge you). LEGAL NOTICE This document has been prepared for the European Commission however it reflects the views only of the authors, and the Commission cannot be held responsible for any use which may be made of the information contained therein. More information on the European Union is available on the Internet (http://www.europa.eu). Luxembourg: Publications Office of the European Union, 2017 ISBN 978-92-79-75352-7 Doi:10.2838/380042 Catalogue number DS-06-17-260-3A-N © European Union, 2017 Contents EXECUTIVE SUMMARY 6 RÉSUMÉ 10 ZUSAMMENFASSUNG 14 1 INTRODUCTION 18 2 DEFINITIONS 23 3 EU AND COUNCIL OF EUROPE CONTEXT 28 3.1 Freedom of religion 29 3.1.1 Justification 30 3.2 Right not to be discriminated against 39 3.2.1 Article 14 ECHR 40 4 EU CONTEXT: DIRECTIVE 2000/78/EC 43 4.1 Prohibited forms of conduct 43 4.1.1 Direct discrimination 43 4.1.2 Indirect discrimination 46 4.1.3 Harassment 49 4.1.4 Instruction to discriminate 49 4.1.5 Victimisation 49 4.2 Genuine and determining occupational requirements / ethos-based organisations 50 5 CJEU CASES ON RELIGIOUS CLOTHING AND SYMBOLS IN EMPLOYMENT 62 5.1 Direct discrimination 63 5.2 Indirect discrimination and justification 65 5.3 Genuine and determining occupational requirements 70 5.4 Other issues 73 5.5 Reactions in the Member States to the judgments in Achbita v G4S and Bougnaoui v Micropole 78 6 RELEVANT NATIONAL LAW 80 6.1 National law prohibiting discrimination on the grounds of religion or belief 80 6.2 National law on the wearing of religious clothing and symbols in employment 82 6.2.1 Public employment 82 6.2.2 Private employment 88 6.3 National case-law on the wearing of religious clothing and symbols in employment 90 6.4 Most important Guidance + Codes of practice on the use of religious clothing and symbols in employment 100 7 CONCLUSION 104 BIBLIOGRAPHY 108 3 Members of the European network of legal experts in gender equality and non-discrimination Management team General coordinator Marcel Zwamborn Human European Consultancy Specialist coordinator Susanne Burri Utrecht University gender equality law Acting specialist coordinator Alexandra Timmer Utrecht University gender equality law Specialist coordinator Isabelle Chopin Migration Policy Group non-discrimination law Project management Ivette Groenendijk Human European Consultancy assistants Michelle Troost-Termeer Human European Consultancy Gender equality Franka van Hoof Utrecht University assistant and research editor Non-discrimination Catharina Germaine Migration Policy Group assistant and research editor Senior experts Senior expert on racial or ethnic origin Lilla Farkas Senior expert on age Mark Freedland Senior expert on EU and human rights law Christopher McCrudden Senior expert on social security Frans Pennings Senior expert on religion or belief Isabelle Rorive Senior expert on gender equality law Linda Senden Senior expert on sexual orientation Krzysztof Smiszek Senior expert on EU law, sex, gender identity and gender Christa Tobler expression in relation to trans and intersex people Senior expert on disability Lisa Waddington 4 National experts Non-discrimination Gender Austria Dieter Schindlauer Martina Thomasberger Belgium Emmanuelle Bribosia Jean Jacqmain Bulgaria Margarita Ilieva Genoveva Tisheva Croatia Ines Bojic Nada Bodiroga-Vukobrat Cyprus Corina Demetriou Evangelia Lia Efstratiou-Georgiades Czech Republic David Zahumenský Kristina Koldinská Denmark Pia Justesen Stine Jørgensen Estonia Vadim Poleshchuk Anu Laas Finland Rainer Hiltunen Kevät Nousiainen FYR of Macedonia Biljana Kotevska Mirjana Najcevska France Sophie Latraverse Sylvaine Laulom Germany Matthias Mahlmann Ulrike Lembke Greece Athanasios Theodoridis Sophia Koukoulis-Spiliotopoulos Hungary Andras Kadar Beáta Nacsa Iceland Gudrun D. Gudmundsdottir Herdís Thorgeirsdóttir Ireland Judy Walsh Frances Meenan Italy Chiara Favilli Simonetta Renga Latvia Anhelita Kamenska Kristīne Dupate Liechtenstein Wilfried Marxer Nicole Mathé Lithuania Gediminas Andriukaitis Tomas Davulis Luxembourg Tania Hoffmann Anik Raskin Malta Tonio Ellul Romina Bartolo Montenegro Nenad Koprivica Ivana Jelic Netherlands Titia Loenen Marlies Vegter Norway Else Leona McClimans Helga Aune Poland Lukasz Bojarski Eleonora Zielinska Portugal Ana Maria Guerra Martins Maria do Rosário Palma Ramalho Romania Romanita Iordache lustina Ionescu Serbia Ivana Krstic Ivana Krstic Slovakia Vanda Durbáková Zuzana Magurová Slovenia Neža Kogovšek Šalamon Tanja Koderman Sever Spain Lorenzo Cachón María-Amparo Ballester-Pastor Sweden Per Norberg Jenny Julen Votinius Turkey Dilek Kurban Nurhan Süral United Kingdom Lucy Vickers Grace James 5 Executive summary This report examines the wearing by individual employees of religious clothing and symbols at work. The existing national legislation and case law in the 28 Member States of the EU is considered together with that of the European Union and the Court of Justice of the European Union (CJEU) and the European Convention on Human Rights and Fundamental Freedoms (ECHR) and the European Court of Human Rights (ECtHR), the Court overseeing the ECHR. National country fiches show (see table 1 below) that a minority of Member States have national, regional and/or local legal prohibitions relating to the wearing of (some forms of) religious clothing and symbols at work in public and/or private employment, in other areas or even in all public spaces. A few other Member States are considering such legislation. There is case law from just over half of the 28 EU Member States but there are also Member States where the issue has not (or not yet) arisen. Therefore, practices vary significantly between Member States, but the issue of the wearing of religious clothing or symbols has arisen in case law or debates in a considerable number of EU Member States. Discrimination on the grounds of religion or belief is prohibited by the Employment Equality Directive.1 Until recently, the CJEU had not given any judgments on religion or belief discrimination, but, on 14 March 2017, its first two judgments in this area came out.2 Both cases concerned Muslim women who wanted to wear a Muslim headscarf or hijab3 to work and who were dismissed when they refused to take these off. The judgments are, therefore, very important for the subject of this report. They will be referred to throughout the report and are analysed in detail in Chapter 5. But before this analysis, a number of other issues are examined. The report starts with an exploration of definitions of the terms: religion; belief; manifestations of religion or belief; and, religious clothing and religious symbols. The CJEU, in Achbita v G4S and Bougnaoui v Micropole, followed the case law of the ECtHR. The CJEU held that the term ‘religion’ needs to be given a wide interpretation and includes both the forum internum: the fact of having a belief, and the forum externum: the manifestation of a religious faith in public.4 The CJEU and the ECtHR have both accepted that the wearing of the Islamic headscarf is a manifestation of religion. The CJEU held that the hijab is thus covered by the protection against religion or belief discrimination given by the Employment Equality Directive. The fundamental human right to freedom of religion in Article 10 of the Charter of Fundamental Rights of the European Union (EUCFR) and Article 9 ECHR and, the fundamental human right to non-discrimination (Article 21 EUCFR and Article 14 ECHR/Protocol 12 to the ECHR) are analysed because they are pertinent for the subject of this report. The ECtHR has decided a number of cases on the wearing of religious clothing or symbols and can thus play a role as a source of guidance for the CJEU. Under Article 9(2) ECHR, the right to freely manifest one’s religion can only be restricted if certain conditions are fulfilled: the restriction must be prescribed by law; must be necessary in a democratic society by fulfilling a pressing social need; must have a legitimate aim (these aims are mentioned in Article 9(2) ECHR); and, the means used to achieve that aim must be proportionate and necessary. The right not to be discriminated against can, according to the ECtHR, also be restricted under certain circumstances and here a similar justification test is applied. And, as is clear from Article 51(2) EUCFR, a similar test also applies to restrictions on the rights in Articles 10 and 21 EUCFR. The ECtHR has, generally, held that bans on the wearing of religious clothing or symbols are justified under Article 9(2) ECHR.
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