In France, the principle of secularism and its relationship with religion is a fast-growing sensitive issue. Employers are often uneasy in regard to the attitude with which to adopt towards the display of a religious symbol. The ECJ’s judgments will provide guidance to employers on how to cope with this sensitive issue. They are strengthening the provisions of the recent El Khomri Law which allowed the insertion of the prohibition of display of a belief, namely religious, within the Internal Regulations.
In the first decision (Belgian case), the Court claims the following principle: an internal rule of an undertaking which prohibits the visible wearing of any political, philosophical or religious sign does not constitute a direct discrimination. This ban can constitute an indirect discrimination if it leads to a particular disadvantage for persons of a particular religion or belief. An exception: "The justified prohibition through a legitimate reason such as maintaining of a general policy of neutrality of the employer towards its customers."
In the second decision (French case), the court completes its position by claiming that taking into account the wishes of a customer who would no longer deal with a worker wearing an Islamic headscarf is ruled out: it doesn’t constitute a determining occupational requirement.
In practice, employers will be able to make provisions on the subject in the Internal Regulations of their company but they will have to be extremely cautious when writing them.
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