This week, the Court of Justice of the European Union has issued a ruling that supports the ban on wearing a veil or other religious symbol at work, in other words, it gives priority to the freedom of the company over the right to the employee's own image.
Clothing at work has always been a controversial issue, as we encounter conflicting rights:
Right to freedom of enterprise: Article 38 of the Constitution recognises freedom of enterprise within the framework of the market economy and public authorities must guarantee and women database protect its exercise; Article 5.c) of the Workers' Statute establishes that workers must comply with the orders and instructions of the employer and Article 20.2 of the same legal body indicates that the worker, in compliance with the obligation assumed in the contract, must comply with the orders or instructions of the employer in the exercise of his management powers.
The worker's right to his or her own image and bodily privacy: the right to one's own image is included in article 18.1 of the Constitution and in the Workers' Statute it appears in article 4.2 section e) : "in the employment relationship, workers have the right: e) To respect for their privacy and the consideration due to their dignity."
Uniformity standards versus the right to the worker's own image
Our Constitution includes the rights of the person in the Labor Law, that is, these rights apply in the labor field, but there is a limit which are the obligations that the worker must fulfill.
So, sometimes, and the freedom of enterprise. To know what limits what, a balancing criterion is used. Accepting that Fundamental Rights can be exercised in the company, but they can have limits when it is essential to satisfy another Fundamental Right that is a priority.
In this assessment, it must be taken into account whether the measure limiting the Fundamental Right satisfies an interest protected by another Fundamental Right; said measure must be necessary (as least aggressive as possible) and proportionate; priority must be given to that claim that involves a more intense application of the Fundamental Rights.
The image of the worker
The image of the worker belongs in principle to the employer during the working day, as long as it is not exceeded, there must be reasonable limits such as the privacy and honor of the worker.
There is an employment contract involved that may legitimize the interference that the worker may eventually suffer. Therefore, it will be necessary to take into account the circumstances surrounding the specific case (especially the need for the measure for the purpose intended by the employer), circumstances that, in some cases, will legitimize the measure and, in others, will deprive it of legitimacy.
As a starting point, it must be kept in mind that the doctrine of the Constitutional Court has declared that the rights of individuals survive within employment relations , although they may be limited depending on the interests and objectives of the employer.
Therefore, the worker must comply with those obligations and guidelines that come from his employer (art. 20.2 ET).
Political, philosophical or religious symbols
Can an employer also restrict employees from wearing certain symbols?
The Court of Justice of the European Union has responded to this question in two cases ( C-157/15 and C-188/15 ), rulings of March 14, 2017, in which it supports the prohibition of wearing religious symbols at work.
In Case C-157/15, a company has an internal rule prohibiting the visible use of any political, philosophical or religious symbol by its employees. A Muslim employee was hired as a receptionist (with this company rule in force) and was eventually dismissed for persisting in her desire to wear the Islamic headscarf during working hours.