The Labour Court has, in a judgment from late 2023, ruled that an employer who prohibited an employee from wearing a hijab did not discriminate against the employee, neither directly nor indirectly. In AD 2023 No. 71, the Labour Court's reasoning is explained, where they focus on the fact that the employer had legitimate reasons behind the prohibition, and therefore it was not discrimination. We hereby discuss the judgment and its consequences for both employers and employees.
In the case at hand, the woman was employed as a security guard in public transportation. The company she worked for had a neutrality policy which prohibited the employees from wearing visible political, philosophical, or religious symbols and expressions. The company argued that the neutrality policy was primarily aimed at reducing the risk of the employees being subjected to threats and violence in the workplace, but also to present a neutral image in relation to customers and to avoid social conflicts between employees.
The neutrality policy did not constitute direct discrimination against the woman, as all types of religious symbols and expressions were prohibited. The woman claimed that other employees had worn necklaces with crosses during work, but it was shown in the case that the employer had also reprimanded other individuals with religious tattoos and did not allow individuals with such tattoos to display them. Since the rules were applied to all employees and for all religious expressions without making distinctions between groups, it was not discriminatory based on her religious beliefs, and therefore not direct discrimination.
The Labour Court also concluded that it was not indirect discrimination either. The neutrality policy would particularly disadvantage Muslim women who wear hijab for religious reasons. In order for the policy to still be permissible, it is required that the policy has a legitimate purpose and that the policy is an appropriate and necessary means to achieve that purpose. The employer's main purpose with the policy has already been mentioned - to ensure that the employees are not exposed to threats and violence in the work environment. Employers have an extensive responsibility to ensure a safe and healthy work environment, and the pursuit of such working conditions is a legitimate purpose in itself.
The employer had to demonstrate that there was a real need for the policy in order to then demonstrate that the policy was an appropriate and necessary means to achieve the purpose. Despite the woman claiming that wearing a hijab did not pose any security risk to her and that a criminology professor who had conducted research on threats and violence in the workplace expressed the same opinion, the court considered the policy necessary to reduce the risk of threats and violence. It is not necessary for a similar incident to have occurred; it suffices that the company has demonstrated that they have conducted a risk assessment based on serious considerations that do not appear unfounded, arbitrary, or based on undue considerations. The Labour Court considered it evident that political, philosophical, and religious symbols in certain situations can be perceived as provocative to individuals with opposing sympathies and beliefs. Therefore, the belief that wearing a hijab can increase the risk of threats and violence is not an unfounded perception. There was also no other appropriate and less intrusive measure that the company could have taken, and the prohibition was considered proportionate.
The Labour Court thus concluded that it did not constitute discrimination to prohibit the woman from wearing a hijab. This is because there was a legitimate purpose behind the prohibition, it was considered an appropriate means to achieve the purpose of ensuring a good and safe work environment, and there was no less intrusive measure that the employer could have taken instead. The court ruling does not mean that employers are free to decide on religious expressions for their employees without it being considered discrimination; there must be a legitimate purpose behind the provisions. The purpose should also not be achievable through less intrusive measures. For employees, the judgment means that it has been established that employers can restrict religious freedom without it constituting discrimination in certain cases.
