In WABE and MH Müller Handel  EUECJ C-804/18 and C-341/19, two cases involving employers who banned their employees from wearing religious symbols at work, preliminary rulings were sought by the Hamburg Labour Court [Arbeitsgericht Hamburg] and the Federal Labour Court [Bundesarbeitsgericht] on the interpretation of Article 2(1) and (2)(a) and (b), Article 4(1) and Article 8(1) of Council Directive 2000/78/EC of 27 November 2000 (the Equal Treatment Directive) and Articles 10 and 16 of the Charter of Fundamental Rights of the EU.
In Case C‑804/18, IX, who was employed by WABE eV as a special needs carer, decided to wear a hijab at her workplace. In March 2018, WABE adopted “Instructions on observing the requirement of neutrality” with a view to applying them in its establishments: specifically that employees should not make any political, philosophical or religious statements to parents, children and third parties in the workplace, should not wear any signs of their political, philosophical or religious beliefs that were visible to parents, children and third parties in the workplace and should not give expression to any related customs to parents, children and third parties in the workplace . WABE asked her to remove her hijab and, following her refusal, suspended her temporarily from her duties on two occasions and gave her a warning [27 & 28]. WABE also required a female employee to remove a cross that she wore around her neck . IX brought an action before the Hamburg Labour Court. She contended:
- that despite the general character of the rule prohibiting the wearing of visible political, submitted that philosophical or religious signs, it directly targeted the hijab and therefore constituted direct discrimination;
- that that rule exclusively affected women and had therefore also be examined in the light of the prohibition of discrimination on the grounds of gender; and
- that it had a greater impact on women with “migration backgrounds” and was capable of constituting discrimination on the grounds of ethnic origin.
- that the Federal Constitutional Court had held that a prohibition on wearing the hijab at work, in a child day care centre, was a serious interference with freedom of belief and, in order to be permissible, had to relate to an established and specific risk; and
- that her action seeking the removal of those warnings could not be opposed on the basis of the judgment in G4S Secure Solutions (C‑157/15, EU:C:2017:203) because the Court of Justice had merely laid down minimum standards in EU law – with the result that the level of protection against discrimination achieved in Germany as a result of the case-law of the Federal Constitutional Court could not be reduced .
WABE argued, inter alia, that the judgment on G4S Secure Solutions authorised a private employer to implement a policy of neutrality within the undertaking provided that it was pursued consistently and systematically and that it was restricted to employees who are in contact with customers. There was no indirect discrimination because the rule was objectively justified by a legitimate aim – WABE’s desire to pursue a policy of neutrality in its relations with customers – and the means of achieving it were appropriate and necessary. Moreover, IX could not be transferred to a post that did not involve contact with the children and their parents because such a post did not correspond to her abilities and qualifications. Further, by its judgment in G4S Secure Solutions  EUECJ C-157/15 the Court had ruled definitively on the question of the balancing of fundamental rights in the light of the Charter where an employer had imposed a requirement of neutrality – and the German courts cannot give a different weighting to religious freedom without contravening the primacy of EU law .
In Case C-341/19, MJ worked as a sales assistant and cashier for MH Müller Handels GmbH. She was asked to remove her hijab and, following her refusal, was first transferred to another post in which she could wear it and subsequently sent home with an instruction to attend her workplace without conspicuous, large-sized signs of any political, philosophical or religious belief. MJ sought a declaration that Müller Handel’s instruction was invalid and sought compensation for the damage suffered: her initial action was successful, but Müller Handels appealed to the Federal Labour Court, arguing that in light of G4S Secure Solutions it was not necessary to establish specific economic harm or a reduction in customers in order for a prohibition on manifesting beliefs to be valid. The Court had attributed greater weight to the freedom to conduct a business protected by Article 16 of the Charter than to freedom of religion, and a different outcome could not be derived from the fundamental rights protected by national law .
In response to the requests for a preliminary ruling on the interpretation of Directive 2000/78 the Grand Chamber ruled as follows:
“1. Article 1 and Article 2(2)(a) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that an internal rule of an undertaking, prohibiting workers from wearing any visible sign of political, philosophical or religious beliefs in the workplace, does not constitute, with regard to workers who observe certain clothing rules based on religious precepts, direct discrimination on the grounds of religion or belief, for the purpose of that directive, provided that that rule is applied in a general and undifferentiated way.
2. Article 2(2)(b) of Directive 2000/78 must be interpreted as meaning that a difference of treatment indirectly based on religion or belief, arising from an internal rule of an undertaking prohibiting workers from wearing any visible sign of political, philosophical or religious beliefs in the workplace, may be justified by the employer’s desire to pursue a policy of political, philosophical and religious neutrality with regard to its customers or users, provided, first, that that policy meets a genuine need on the part of that employer, which it is for that employer to demonstrate, taking into consideration, inter alia, the legitimate wishes of those customers or users and the adverse consequences that that employer would suffer in the absence of that policy, given the nature of its activities and the context in which they are carried out; secondly, that that difference of treatment is appropriate for the purpose of ensuring that the employer’s policy of neutrality is properly applied, which entails that that policy is pursued in a consistent and systematic manner; and, thirdly, that the prohibition in question is limited to what is strictly necessary having regard to the actual scale and severity of the adverse consequences that the employer is seeking to avoid by adopting that prohibition.
3. Article 2(2)(b)(i) of Directive 2000/78 must be interpreted as meaning that indirect discrimination on the grounds of religion or belief resulting from an internal rule of an undertaking prohibiting, at the workplace, the wearing of visible signs of political, philosophical or religious beliefs with the aim of ensuring a policy of neutrality within that undertaking can be justified only if that prohibition covers all visible forms of expression of political, philosophical or religious beliefs. A prohibition which is limited to the wearing of conspicuous, large-sized signs of political, philosophical or religious beliefs is liable to constitute direct discrimination on the grounds of religion or belief, which cannot in any event be justified on the basis of that provision.
4. Article 2(2)(b) of Directive 2000/78 must be interpreted as meaning that national provisions protecting the freedom of religion may be taken into account as more favourable provisions, within the meaning of Article 8(1) of that directive, in examining the appropriateness of a difference of treatment indirectly based on religion or belief.”
There is a press release on the judgment, here.