In the latest issue of "PV Info", a professional journal for payroll accounting by renowned legal publishing house Linde Verlag, our labor law expert Erwin Fuchs elaborates on the (il-)legality of the prohibition of religious symbols in the workplace. The full article was published in the German language under the title "Verbot religiöser Zeichen am Arbeitsplatz - die Entscheidungen in den Rs WABE und MH Müller Handel."
Recently, the ECJ had once again to evaluate neutrality requirements for employees in context with the right to wear headscarfs while working in its decisions C-804/18 (WABE) and C-341/19 (MH Müller Handel).
A so-called "instruction on compliance with the principle of neutrality" as issued by WABE would be permissible in Austria. A regulation would, however, have to be followed consistently and systematically and, in addition, would have to use means of attainment that are appropriate and necessary.
It makes sense to distinguish between employees who have customer contact and those who do not. Ideally, the neutrality requirements should only apply to those employees who have customer contact. Furthermore, it would be essential that such regulation includes any visible expression of political, ideological or religious convictions. A ban limited to the wearing of conspicuous large-surface signs may constitute direct discrimination on the grounds of religion or belief.
For the legally permissible introduction of such regulation, it should be noted that it is considered to be a so-called „general regulation governing the conduct of employees in the workplace“.
Therefore, in a company with a works council § 97 para. 1 no. 1 ArbVG would have to be complied with and neutrality requirements may be established via a voluntarily enforceable works agreement or an unilateral instruction of
the employer. In the event of a disagreement between the employer and the works council, a regulation could be enforced by both parties before a conciliation body at a court.
Companies without a works council may however impose neutrality requirements unilaterally.
Erwin Fuchs advises and represents companies in labour law and data protection law matters and related issues. For nearly twenty years, he has been providing advice to companies from all sectors, with a focus on HR services, trade, industry, IT, commerce and culture. Erwin advises his clients both on labour law aspects of the formation and takeover of companies in Austria and on the enforcement and defence of claims based on labour law issues. Among others, he is highly experienced in providing support during business transfers as well as in establishing and creating internal labour law processes and documents (in particular in the sphere of developing and amending working time models and internal agreements).