Home > Workplace > Belgium > 2013-01-02 - Tongeren Labour Court, n. A.R. 11/2142/A, Hema (...)

2013-01-02 - Tongeren Labour Court, n. A.R. 11/2142/A, Hema case

Workplace · Belgium · Discrimination · Dismissal · Dress code

Dismissal due to Islamic headscarf wearing without clear dress code policy banning it amounts to discrimination

Key facts of the case - A saleswoman was dismissed by her employer (Hema) after working with a headscarf for almost two months, because several complaints were received by customers. Initially the saleswoman had been given a headscarf in the colours of the company (from the Netherlands, where this is generally accepted), and Hema had no clear uniform policy banning religious dress.

Main reasoning of the case - Because of this, the court held in the employee’s favour, finding direct discrimination (and no genuine occupational requirement). The court asserted that the matter would be much different in case the employer at that time had a clear neutrality policy; since Hema adopted such policy following this incident (the case was much publicized) this means similar claims would be blocked in the future.

Comment - The Courts hold that there is no direct discrimination under the Belgian anti-discrimination law for wearing of religious clothing or symbols at work since this is not included under the protected ‘religion or belief’ criterion.
The Court thus limits the notion ‘religion or belief’ under the Belgian anti-discrimination law to only forum internum part of religious freedom. Headscarf conflicts thus can only to be regarded under indirect discrimination with possibility of justification (legitimate aim and proportional restriction of freedom of religion).
The notion of religion or belief is not defined under the EED, the Belgian Anti-discrimination Act (nor under any other EU antidiscrimination acts), but it should be interpreted in a broad way. By limiting ‘religion or belief’ to belonging to a religion, and excluding practices that indicate/manifest that religious belonging, the protection against (direct) discrimination is considerably deflated.