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Supreme Court judgment in leading case on headscarves

February 2005 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

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On 21 January 2005, a unanimous Supreme Court upheld the Eastern High Court's judgment of 18 December 2003 and, thus, acceded to the Eastern High Court's assessment that a large Danish retail chain was entitled to summarily dismiss an employee who announced that after five years' employment she intended to wear a headscarf because of her Muslim faith.

In its ratio decidendi, the Supreme Court made reference thereto that the employer's dress code contains requirements for full or partial uniforms depending on the employees' work functions. Further, reference was made to the wording of the dress code which reads as follows as regards headgear:

"In all areas where there are no requirements for specific headgear, our dress code stipulates that our employees do not wear headgear".

The Supreme Court then referred to the information that the provision quoted above applies only to employees with direct contact with customers, and that during it was not contested that the employer enforced the dress code consistently.

Further, the Supreme Court made reference thereto that according to information received from the employer, the purpose of the prohibition against wearing headgear "is to signal towards the customers that …is a politically and religiously neutral company".

Against the background of these initial remarks, the Supreme Court applied:

"…that the prohibition against wearing headgear - albeit that the provision is technically neutral - to a considerable extent affects the proportion of Muslim women wearing headscarves for religious reasons."

The Supreme Court then reviewed the travaux preparatoires to Act No. 459 of 12 June 1996 on prohibition against discrimination in the labour market and established that pursuant to the said travaux preparatoires, it does not constitute illegal indirect discrimination if the provisions entailing discrimination is "based on objective considerations as regards the performance of the work". Further, reference was made to the travaux preparatoires where the following example is given of indirect discrimination, which is not illegal:

"It will still be allowed to require that the employees wear uniforms or specific clothing if such requirement forms part of the company's external presentation, and if such requirement is made consistently to all employees in similar positions."

The Supreme Court then stated:

"Thus, the legislator has balanced the considerations towards an employer requiring uniform or specific clothing against the considerations towards an employee not able to meet such dress code for religious reasons."

The Supreme Court then stated that it will not be decisive on the lawfulness whether the company stipulates the use of specific headgear in its requirement for uniform or specific clothing or whether the company stipulates that its employees are not allowed to wear headgear, as long as the conditions laid down in the example in the travaux preparatoires are met.

Against this background, the Supreme Court found that enforcement of the prohibition against wearing headgear with the prescribed employee clothing applicable to all employees with direct contact with customers cannot be considered to constitute a contravention of the prohibition against discrimination in the labour market etc..

Further, the Supreme Court made a reference thereto that based on existing case law from the European Court of Justice, there is no basis for finding the enforcement of the prohibition to be in contravention of Article 9 of the European Convention on Human Rights.

On the basis of the Supreme Court judgment, it must be considered to be decisively and finally established:

  • THAT in regards to employees with direct contact with customers, an employer may implement a dress code prohibiting the use of headgear if it is part of the dress code not to wear headgear, and
  • the purpose thereof is part of the company's external presentation, and
  • THAT it must be a requirement enforced consistently towards all employees in similar positions.

For further information please contact
Yvonne Frederiksen
yf@nv-law.dk
Phone + 45 35 25 39 40