South Africa is famous for its rich and diverse cultural heritage. September 24th marks Heritage Day, where locals are encouraged to celebrate their ancestry and customs, perhaps donning cultural regalia or partaking in events that commemorate this wealth of heritage.

However, as we approach Heritage Day – and as the vaccine roll-out gains momentum and employees start to return to the workplace – the question around the donning of religious, cultural or political clothing and other symbols once again rises to the fore. In those workplaces where this form of clothing is prohibited, does this constitute as legal grounds for discrimination?

Employment Law experts at Cliffe Dekker Hofmeyr consider the latest decision of the European Union’s Court of Justice, which – although not binding in our South African courts – offers useful insights and considerations for employers who endorse a policy of neutrality in the workplace.

OLD ISSUES YET NEW DIMENSIONS POSING ADDITIONAL CHALLENGES IN CRAFTING ANY RETURN-TO-WORK STRATEGY

The prohibition of religious, cultural, or political clothing and other symbols in the workplace is not a new topic facing employers in South Africa, but can this be a justifiable basis for discrimination in a post-Covid return to work process?

Where a large number of employees have been working remotely, many have been at liberty to observe their religious convictions and cultural preferences without any strictures imposed by their employers, but can this hold where those employees will soon start to commence a return to work but seek to continue to observe their closely held religious and cultural convictions?

We consider the very latest decision of the Court of Justice of the European Union, known as the European Court of Justice (ECJ), which although not binding on our South African Courts, offers useful insights and guidance on this important question.

THE LEGAL QUESTIONS POSED

Can an Employer prohibit the wearing of religious, political and/or cultural symbols on the grounds of a subjective intention to remain religiously, culturally and/or politically neutral to its customers.
Is an Employer’s decision to unilaterally prohibit the presence of religious, political and/or culturally sensitive signs, symbols and/or dress in the workplace a ground for justifiable direct or indirect discrimination?

FULL CASE CITATION OF THE ECJ MATTERS

ECJ Case No. C-804/18 : IX vs WABE eV (“WABE”)

ECJ Case No. C-341/19 : MJ vs MH Muller Handels GmbH (“MH”)

SUMMARY OF THE FACTS OF EACH ECJ MATTER

The first of the two cases joined in the ECJ concerned IX, a Muslim employee of a company running a number of nurseries, who was asked, when returning from parental leave, to no longer wear a headscarf.

During her leave, the company had introduced a neutrality policy prescribing that employees refrain from wearing any visible signs of political, ideological or religious beliefs whilst at work. The employee refused to remove her headscarf and, after two official warnings, was released from work. The company’s neutrality policy did not apply to employees who did not come into contact with customers. IX challenged this on grounds of discrimination based on her religious beliefs and as discrimination on the grounds of gender and/or her ethnic origin.

The second case concerned MJ, a Muslim employee of a company that runs a number of pharmaceutical outlets. On her return from leave, the employee wore a headscarf, which she had not done before. Her employer asked her to remove the headscarf as it was against company rules that prohibited the wearing of any prominent or large-scale signs of religious, philosophical or political convictions.

This rule applied to all its retail shops and aimed to preserve neutrality and avoid conflicts between employees at work. After twice refusing to do so, she received instructions to come to work without the headscarf. MJ also challenged these instructions as discriminatory. In both cases, the incumbents were dismissed for a failure to adhere to the instructions of their employers.

These matters were referred to the ECJ by the Labour Court of Hamburg and the Federal Labour Court of Germany respectively, which required the ECJ to consider the question of whether the dismissal of the two Muslim women from their employment as a result of their non-compliance with instructions to refrain from wearing their hijab was compliant with EU law on equal treatment in employment and occupation. As such, a crucial question before the ECJ was the interpretation of the relevant Council Directives of 27 November 2000 which established a general framework for equal treatment in employment and occupation.

The ECJ was asked to consider whether an employer’s instructions prohibiting employees from wearing visible signs of their political, philosophical or religious beliefs in the workplace, constituted, with regard to workers who observe the requirements based on their religious precepts, constituted direct or indirect discrimination. Further, in what circumstances would a difference of treatment, indirectly based on religion or cultural beliefs resulting from that rule, may be justified and what elements need to be taken into consideration when examining the appropriateness of such a difference in treatment.

SUMMARY OF THE FINDINGS OF THE ECJ

As it relates to the question of whether an internal rule prohibiting workers from wearing any visible sign of political, philosophical or religious beliefs in the workplace, constitutes, with regard to workers who observe certain dress codes based on religious precepts, direct discrimination on grounds of religion or belief, the ECJ necessarily referred to its previous 2017 decision which posed a similar question.

According to the 2017 decision, such a rule does not constitute direct discrimination provided that it covers any manifestation of such beliefs without distinction and treats all workers of the employer’s business in the same way by requiring them, in a general and undifferentiated way, to dress neutrally, which precludes the wearing of such signs. The internal rule at issue in the present case appears to have been applied in a general and undifferentiated way since the employer concerned also required an employee wearing a religious cross to remove that sign.

As it relates to the question of whether a difference of treatment indirectly based on religion or belief, arising from such an internal rule, may be justified by the employer’s desire to pursue a policy of neutrality in deference to its customers, to take account of their wishes, the ECJ answered that question in the affirmative. The ECJ noted, first of all, that an employer’s desire to display, in relation to its customers, a policy of political, philosophical or religious neutrality could be regarded as a legitimate aim.

However, a mere desire is not sufficient to justify an objective difference of treatment indirectly based on religion or belief. A justification can be regarded as objective only where there is a genuine need on the part of that employer. The relevant elements for identifying such a need were identified as, inter alia, the rights and legitimate wishes of customers or users and, more specifically, the parents’ wish to have their children supervised by persons who would not manifest their religion or beliefs when they are in contact with and educating their children.

Ultimately, the employer must adduce evidence indicating that a failure to enforce such a restriction could be detrimental to its business activities.

The ECJ referred to Articles 4(1) and (2) of the German Constitution, which provides that an employer’s wish to pursue a policy of religious neutrality which restricts an employee’s right to freedom of religion, is legitimate only where the employer would suffer economic harm if such neutrality did not exist.

The ECJ found that a similar proviso already formed part of Article 2(2)(b)(i) of Directive 2000/78 regarding the justification of indirect discrimination based on religion or beliefs and as such, it found in favour of the employers in both cases.

This judgement is noteworthy in that it holds employers to a higher burden of proof when implementing policies of neutrality. The requirement of a ‘genuine need’ versus that of a mere ‘desire’. Importantly, the justification and proportionality test for indirect discrimination has become more rigorous, requiring employers to provide evidence of the potential economic harm that may befall them in the absence of such a policy.

CONSIDERATIONS FROM A SOUTH AFRICAN PERSPECTIVE

For many in South Africa, closely held religious and cultural beliefs are central to their lives and this is accentuated by a return for many to their religious and cultural convictions when dealing with the strain, anxiety and tragedy caused by the coronavirus pandemic.
This poses the question of whether the judgment of the ECJ would find favour in South Africa given our deep cultural and religious diversity, and the foundational principles of our entrenched Constitutional order. It is arguable it would not. Our Courts, right across the board, recognize the need for a balance to be struck between the right to freedom of religion and cultural rights and the commercial interests of the workplace. Any such future debate will centre upon the right to such freedoms and how they might be accommodated and under what circumstances they may be limited for justifiable reasons. ​
How far would our courts go to support a principle of neutrality? This will be a crucial question when seeking to balance a rule which may be over-restrictive and possibly disproportionate to the interests that the employer seeks to protect.
With National Women’s Day and the celebration of Heritage Day soon, these are matters worthy of close consideration and debate.

ENDS

Other considerations:

The South African context – given our tumultuous past, our Constitution is one of the most progressive in the world. Does this influence our workplace policies, specifically pertaining to cultural/political and religious clothing?
Can an employer prohibit the wearing of religious, political and/or cultural symbols on the grounds of a subjective intention to remain neutral in facing its clients/customers?
Is an employer’s decision to unilaterally prohibit the presence of religious, political and/or culturally sensitive signs, symbols and/or dress in the workplace grounds for justifiable direct or indirect discrimination?
What form or recourse do employees have, who feel they have been unfairly discriminated against on the basis of their clothing?