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1998-12-24 - Ghent Labour Court of Appeal

Workplace · Belgium · Recruitment · Religious practices

A Jehovah witness refuses a job on ground of religion

Key facts of the case - A member of the Jehovah’s Witnesses refused a job ‘for personal reasons’ as a salesperson in a bakery because that position (for 25 hours a week spread over 5 half days including Saturday and Sunday) was likely to include weekend work and possibly prevent or restrict proselytizing her religion through house visits.

Main reasoning of the court - The outright refusal without inquiring into more specifics of the job leads to an exclusion (and reclaiming) of benefits for refusal of a suitable position. Moreover, the applicant is considered ‘unavailable for the labour market’ by refusing any weekend work, which carries a more severe sanction (indeterminate exclusion of benefits). Religious grounds can be taken into account when assessing the appropriateness of a job opening (even though religious grounds are not mentioned in Article 22, 1st para-32bis of the Ministerial Decision of 26 November 1991 which includes a non-exhaustive list of criteria that can be taken into account to assess the appropriateness of a job position, according to the established case law of the Court of cassation). No distinction is thereby made on ground of religion (e.g. because of the sectarian character of a religion) as long as the grounds mentioned under Article 9.2 of the ECHR are not violated.

Comment - No distinction is made on ground of religion (recognized or not by the State, organized or not…). As this case sanctions the jobseeker for not inquiring into the job specifics and also possible accommodations, it would be contradictory to see employers as having no duty whatsoever to agree on certain accommodations even in the absence of any explicit accommodation duty. Employee should not be sanctioned for not requesting accommodations when the employer the employer can refuse to requests or can outright refuse accommodation s without having to point to e.g. factors that the enterprise will be harmed.