Update: 01.02.2017

Wearing a hijab is not grounds for dismissal

A company in Switzerland fired a female employee because she started wearing a hijab to work. On 8 September 2016, the District Court Bern-Mittelland ruled this constituted wrongful termination.

Since rulings on the subject of hijabs are rare, this could be seen as a precedent.

Wrongful termination

The worker had been employed at a Bern industrial laundry since 2009 and had always worked to the employer’s full satisfaction. At the beginning of 2015, the young woman began wearing a hijab at her workplace for religious reasons. This resulted in her immediate dismissal for safety and hygiene reasons, according to the company.

The woman’s employer did not convincingly demonstrate that banning a headscarf was necessary for a smooth workflow. He was also unable to explain why a hijab would pose a safety risk and why it would negatively influence hygiene. The judge was not convinced by the employer’s reasoning and decided that the termination was wrongful according to Art. 336 Para. 1 Lit. b of the Code of Obligations. For more information, read our article on increased protection against abusive dismissal. The company was ordered to pay the woman three months’ salary, which totalled CHF 13,195 and had to pay the court costs.

The judge ruled that the headscarf represented a cultural symbol in the Islamic tradition and was not just a fashionable accessory. Respect for religious clothing, including the hijab, is protected by Art. 15 of the Federal Constitution.

Justification of such a ban in public places…

The Bern-Mittelland court’s decision was strongly criticised. Companies want to be granted the same rights as the state and to be allowed to restrict certain fundamental rights, such as freedom of religion. In 1997, the Federal Supreme Court had previously upheld a ban to prevent a Geneva teacher from wearing a hijab.

Even back then, the Court accepted the fact that the ban to wear a hijab represented a restriction on religious freedom. It justified its decision by citing the compulsory nature of public schooling and the impressionable nature of children. The Court also cited the strict separation of church and state in the canton of Geneva.

…but not in the private sphere

The Bern-Mittelland court ruled the situation to be different in a private employment relationship. The court argued that an employment contract could not include a ban to wear a hijab as long as the employee’s work was not affected, because freedom of religion and belief take priority in a private employment relationship.

The judge also pointed out the international legal principles dealing with this issue: Art. 9 of the European Convention on Human Rights and Art.9 of the International Covenant on Civil and Political Rights. In his analysis, the judge also referred to Art. 35 of the Swiss Federal Constitution which states that authorities must ensure that fundamental rights apply to relationships among private individuals.

Companies call for religious neutrality

The question of religious symbols in the public sphere has been the subject of heated debates in Switzerland for quite some time. The judgement by the Bern-Mittelland court stirred up opposing reactions. One side argued that the judgement was a positive because it protected religious freedom. However, it could mean that Muslim women may not get hired because employers do not want them to wear a hijab.

Organizations such as the Association of Entrepreneurs of Western Switzerland (FER Genève) considered the judgement to be an unacceptable restriction of employers’ contractual freedoms and feared workers would take further legal action based on Art. 15 of the Federal Constitution.

FER Genève called for confessional neutrality and guaranteed labour peace for companies in an article in Le Temps newspaper on 4 November. Currently, internal norms based on hygiene guidelines govern clothing regulations for employees. Hygiene regulations are therefore used as a pretext to indirectly ban the hijab and to justify a restriction of the freedom of religion.

FER Genève decried the Bern-Mittelland court’s decision and called for a new law to govern the relationship between employers and the workforce in the region.

Confirmation of an older ruling

In 1990, the Arbon District Court ruled on a similar case. A machine manufacturer from Eastern Switzerland had fired a Muslim employee who refused to take off her hijab. The court decided that this constituted wrongful termination. The court rejected the employer’s argument that the hijab would endanger the employee’s safety. The judge emphasized that the employee did not work in the part of the company in which clothing regulations for safety reasons were mandatory.

The Bern-Mittelland court’s ruling confirmed this 1990 verdict. It demonstrated that religious freedom takes precedence over freedom of contract, provided it does not lead to a violation of an employee’s duties.

Documentation

© humanrights.ch / MERS - Hallerstr. 23 - CH-3012 Bern - Tel. +41 31 302 01 61