Belgium : Important case-law on wearing an Islamic headscarf at work
International Employment Bulletin contents
- Belgium : Islamic headscarf & workplace
- France : Moral harassment
- Germany : Risks of headhunting
- Italy : Termination clauses
- UK : Compulsory pensions
The question of whether employees can wear religious symbols, such as an Islamic headscarf, at work is a very delicate one. Indeed, amongst other fundamental rights, the Belgian Constitution defends "the freedom of religion, the freedom of worship and the freedom of expression of religion". Furthermore, specific legislation, namely the Anti-Discrimination Act of 10 May 2007 prohibits all forms of direct or indirect discrimination on a number of grounds, including religion. The Anti-Discrimination Act also applies to the employment relationship.
Given the above legislation, the question arises whether an employer can prohibit one of its employees from wearing an Islamic headscarf at work. The Labour Court of Appeal in Antwerp answered this question affirmatively.
The case involved a Muslim employee who was employed by a security firm and worked as a receptionist for two different clients, one of which required receptionists to wear a uniform. She informed her employer that she wanted to wear her Islamic headscarf during working hours.
Importantly, according to her employer's dress code, which was set out in the company's work rules, employees were not allowed to wear "any visible signs or symbols of a political, philosophical or religious nature".
The employee refused to comply with this rule and stated her intention to go to work wearing the headscarf. Following this, the employer decided to terminate her employment contract according to the normal termination process and to make a severance payment.
The employee responded by claiming that her dismissal was unfair and that she had been discriminated against on the grounds of her religion. She then brought a claim before the Labour Court, claiming additional damages of 6 months' salary under the Anti-Discrimination Act.
In a ruling on 23 December 2011, the Labour Court of Appeal rejected her claim. According to the Court, the dress code, as set out in the work rules, prohibited all political, religious and philosophical symbols, without any specific distinction for different religions. Muslims were therefore not treated differently from people of any other religion.
Furthermore, the Court held that the promotion of equality and pluralism in the workplace was a valid objective for employers. An employer could achieve this either by implementing a policy allowing all employees to freely express their political, religious or philosophical beliefs, or by implementing an absolutely neutral policy which prohibits employees from expressing their religious or philosophical beliefs without any distinction.
In the case at hand, the employer chose the latter option. The Labour Court held that this was a valid option and confirmed that the dress code did not discriminate against Muslim women by prohibiting them from wearing a headscarf at work.
Finally, it is worth noting that a number of other companies, particularly in the retail sector, are currently facing discrimination claims after prohibiting employees from wearing Islamic headscarves. It will be interesting to see whether other Labour Courts adopt similar positions.
Contribution by Olivier Rijckaert and Jan Hebbelinck, Field Fisher Waterhouse LLP (Brussels), Employment and Benefits Group