The Labour Court of Ghent, Ghent section, brought a well-known discrimination saga to an anticlimactic close on 12 October 2020, after a journey that began more than 10 years ago before the Labour Courts in Antwerp and included intervention by the Court of Cassation and the European Court of Justice.
A worker, supported by Unia, brought proceedings before the Labour Court of Antwerp, claiming that she had been discriminated against on the basis of her religion after she had been dismissed by her employer for suddenly wanting to wear an Islamic headscarf while performing her job as a receptionist and thereby not respecting the company’s dress code. The employer had a “strong neutrality” policy which combines respect for everyone with prohibiting employees who come into contact with customers from wearing visible political, philosophical or religious symbols at work. The worker concerned considered the employer’s neutrality policy as direct or at least indirect discrimination based on her religion.
During the proceedings, it had already become clear that the ban certainly did not constitute direct discrimination. As a conclusion, the Labour Court of Ghent found, in a particularly extensively reasoned judgment, that the employer’s strong neutrality policy did not constitute any form of indirect discrimination, because there was no particular disadvantage for any well-defined group of persons who could claim protection. As a secondary matter, the Labour Court also examined whether there would have been any indirect discrimination if the Court had assumed that there was a particular disadvantage. It concluded that there would have been no indirect discrimination in that hypothesis either, given the fact that the prohibition in this case was limited to staff members who come into contact with customers.
What are the implications of this case law for you as a private employer?
- A private employer can choose whether it wishes to implement a strong neutrality policy, which means a neutrality policy that prohibits the wearing of visible political, philosophical or religious symbols at the workplace.
- Such a policy is not discriminatory against persons who would also like to be able to express their religious or philosophical beliefs at work.
- An employer must effectively apply its neutrality policy in a coherent and systematic manner.
- An employer may limit strong neutrality to staff members who come into contact with customers.
- A logical consequence of the judgment is that a strong neutrality policy for all employees of the company must also be possible. An appropriate definition of the objective is then obviously recommended.