Neutrality or diversity policy: to do’s for employers

There has long been a debate regarding the question whether an employer may pursue a neutrality policy and in that context may prohibit the wearing of religious symbols, without this constituting (in)direct discrimination on grounds of religious belief. 

In 2017, the European Court of Justice had already ruled in the Belgian Achbita-case (see here) that employers may indeed do so, at least with regard to their employees who are in contact with customers (i.e. only for front office and not for back office employees). 

This position has meanwhile also been confirmed by the Labour Court of Ghent: pursuing an exclusive neutrality policy is a legitimate aim to justify the ban on wearing religious symbols and, as long as certain conditions are met, does not constitute indirect discrimination on grounds of religious belief.
 

TO DO'S

Case law accepts a neutrality policy, but currently only for front office functions. The distinction between front office and back office functions is not always clear in practice and it is therefore advisable to frame this properly in the policy.

If you do opt for a general policy for all employees, provide additional arguments (e.g. the promotion of a coherent cooperation between all employees, especially if the staff is very diverse), but be aware that this may be questioned. 

Put the policy in writing: this can be done, for example, via the work rules. Provide sufficient information to employees about the modalities of the policy. 

Support the neutrality policy by, for example, corporate values and a mission statement: make sure you have a solid file. Requirements or preferences of a client are certainly not a sufficient justification for a neutrality policy. 

The application of the policy in practice must be general, consistent and non-differentiated. This means, for example, that all visible symbols of political, philosophical or religious conviction must be targeted and not only the Islamic headscarf. 

• That this is not always evident is shown by a recent case of 3 May 2021 before the Labour Tribunal of Brussels. The case concerned a Muslim woman who had twice applied for various HR positions with a Brussels transport company (public sector) and who, when applying, had indicated that she wanted to wear her headscarf at work. The applicant was not hired. 
  Without going into the specific context of the case, the Tribunal ruled that the employer’s neutrality policy was not consistent (e.g. by prohibiting women from wearing a headscarf, but not men from sporting a beard, even though the latter may also reflect a particular religious belief). The employer was condemned to pay two indemnities, in total equal to 12 months’ salary, because according to the Tribunal the non-solicitation constituted a direct discrimination based on religion as well as an indirect discrimination based on gender. 

Before sanctioning or dismissing on the basis of non-compliance with the neutrality policy, consider whether it is not possible to assign the employee to another existing post that does not require visual contact with customers. This assessment must be made within reason: an employer cannot be expected to for example create a new position in the back office. 

GDPR

In order to efficiently implement a diversity policy and to undertake the necessary HR actions (e.g. recruitment, training, awareness-raising), companies first and foremost need data about their employee population. This almost always implies the processing of sensitive data (e.g. race/ethnicity, data about sexual behaviour, religious beliefs). 

And that is problematic, since this is prohibited under Article 9 GDPR. The most obvious exception, namely that the processing is necessary for the purposes of carrying out the employer’s obligations, cannot be used in Belgium, as there is no sufficient legal basis according to the Belgian Data Protection Authority (DPA): the anti-discrimination laws are not sufficiently specific according to the DPA and – unlike other Member States such as the Netherlands – the Belgian legislator has not provided for specific rules. 

The other exception, the consent of the employee, is possibly an option, because a diversity policy is also in the interest of the employee, but the DPA immediately adds that this remains somewhat problematic, because an employee could feel pressured to share this data. Another negative aspect is that an employee can always withdraw his consent. 

Anonymous questioning is therefore an alternative and will probably lead to greater willingness on the part of employees to participate. The downside is that anonymization makes the output much less valuable and useful.
 

Positive action, no discrimination

Of course, a diversity policy may not discriminate either. If certain categories of persons are less represented in a company (e.g. young persons or persons of immigrant origin), and an employer wants to take measures to restore that equality, he must ensure that this does not constitute discrimination. 

To protect against this, the Royal Decree of 11 February 2019 has developed a framework that provides the necessary legal protection for employers who commit to taking positive action measures. Positive actions are only possible under certain conditions and must be introduced in the company through a collective bargaining agreement or through an act of accession and after approval by the Minister of Work. Examples of positive actions include specific recruitment campaigns, stimulating training for specific opportunity groups.
 

TO DO'S

If you are looking for the necessary data of your employees to implement a diversity policy and you wish to choose the most GDPR-compliant solution, use anonymous questionnaires. 

If you fear that you do not have sufficiently accurate data, you may consider requesting the personal data with the consent of the employee. In that case, however, it is in your best interest to inform the employees very clearly about the reasons why you will be using the data and what you will do with the results of the survey. After all, transparent information and communication about the policy reduce the chance of employees withdrawing their consent. Obviously, the information can only be used for the purpose of the diversity policy and an employee cannot be sanctioned or treated negatively on the basis of the data.

In order to avoid a violation of the discrimination legislation, it is a good idea to develop a positive action plan.