Be Aware March 2021

Is the implementation of a policy of political, philosophical and religious neutrality within a private company discriminatory?

It is not uncommon for private companies to implement a policy of political, philosophical and religious neutrality, specifically in companies with customer-facing staff.

Does the implementation of this type of policy in itself constitute indirect discrimination? The question arises specifically with regard to the wearing of a headscarf when it is forbidden due to this neutrality policy in force within the company.

The judgment delivered by the Ghent Higher Labour Court on 12 October 2020 (RG 2019/AG/55) determines a position on this matter. The Ghent Higher Labour Court was called upon to rule after this case had been previously dealt with by the Antwerp Labour Court (judgment of 27 April 2010, AR 06/397639/A), by the Antwerp Higher Labour Court (judgment of 23 December 2011, AR 2010/AA/453 et 2010/AA/467), by the Court of Cassation (9 March 2015, S 12.0062.N) and finally by the Court of Justice of the European Union (judgment of 14 March 2017, case C157/15).

The facts in brief: in a surveillance and security company, a receptionist starts to wear an Islamic headscarf. This company implements an (initially unwritten) neutrality policy motivated in particular by a concern for the neutrality of the company’s image among its customers. As the parties cannot come to an agreement, the employee is dismissed. She then decides to bring legal action against her former employer claiming payment of a six-month indemnity based on the Anti-Discrimination Act of 25 February 2003.

Following a long development, the Ghent Higher Labour Court concludes that, in the case at hand, provided that the neutrality policy in force within the company applies to all, there is no indirect discrimination, since a well-defined group of people entitled to protection because of their common belief or their political or philosophical beliefs is not being put at a particular disadvantage. The Court also comes to the same conclusion after conducting a justification test.

While the implementation of a policy of political, philosophical and religious neutrality in itself does not constitute indirect discrimination, the implementation of such a policy shall nevertheless pursue a legitimate purpose. In our opinion, this will be the case when this neutrality policy aims to ensure the company’s neutrality in its customer relations, for example.

This presupposes, however, that this policy only applies to customer-facing positions. A company should also ensure that such neutrality policy is outlined in a written document and that a clause to this effect is included in the work rules.

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