Law firm specialising in employment law
and social security law.
Law firm specialising in employment law
and social security law.
While the principle of secularism allows manifestations of religious beliefs in the public domain within the limits of public order, many employers, given their activities, raise questions about their power to restrict such freedom in the workplace.
Column published in actuEL RH can be read by clicking on the link below: https://www.actuel-rh.fr/content/comment-encadrer-les-manifestations-de-convictions-religieuses-en-entreprise or can be read below.
In France, Article 9 of the European Convention for the Protection of Human Rights and Article 10 of the Declaration of the Rights of Man and of the Citizen guarantee freedom of religion and consequently freedom to manifest one's religious beliefs.
In private companies, an article of the French Labour Code provides that restrictions may be placed on individual freedoms, in particular the freedom to manifest one's religious beliefs, provided that they are justified by the nature of the task to be performed and proportionate to the purpose sought (Article L.1121-1 of the French Labour Code).
This article of the French Labour Code, which is the only one to cover such restrictions by the employer on employees’ freedoms, is particularly broad in its wording. It is consequently for case law to refine the outlines and regulate the restrictions that may be decided in the company.
The stakes are high since an employee whose personal freedom has been restricted and who considers himself a victim of discrimination may apply to the industrial tribunal for damages and/or, in the event of termination of the employment contract, compensation for unfair dismissal. In this type of dispute, the amounts which the employer may be ordered to pay quickly become considerable.
To what extent and under what conditions can an employer restrict its employees’ freedom to manifest their religious beliefs?
As we will see, the restrictions that can be envisaged in a company differ depending on whether it has rules of procedure or not.
As mentioned above, the possibility for the employer to impose restrictions on employees' freedoms lies in the terms of Article L.1121-1 of the French Labour Code.
In this respect, the Court of Cassation regularly emphasises that if no specific rules are laid down governing restrictions on individual freedoms in the company, a prohibition on wearing any political, philosophical or religious symbol in the workplace may be justified by a valid reason that the employer must be able to demonstrate.
This is what occurred in some cases in which the employer was considered to have a legitimate reason in view of its activities (for example, an employer who required a doctor not to have a long beard, loose hair or wear a collar due to his medical activities, with the aim of guaranteeing patient health and safety; in the same way, for obvious reasons of hygiene, beards may be prohibited and/or wearing mob caps made compulsory for kitchen staff; finally and as a last example, it has already been considered that a Mohawk haircut of a bank employee who had direct dealings with customers was inappropriate in view of the company's brand image).
The Court of Cassation highlighted the need to properly justify such a legitimate reason, in the context of a case referred to it on 8 July 2020[1].
In this case, an employee had been hired to provide security and defence services in Yemen. This employee had a beard which, according to his employer, was deliberately cut in a religiously and politically significant way. He was dismissed for serious misconduct due to his refusal to have a "more neutral" beard.
In litigation, in order to respond to the employee's discrimination claim, the employer argued that the termination of the employment contract was justified by the “legitimate objective of the professional activity and the customers” which enabled it “to require employees to have a neutral appearance when this was made necessary in order to prevent an objective danger”.
In this case, this argument did not convince the Court of Cassation. It considered that the employer did not demonstrate the specific safety risks linked to having a beard in the scope of performance of the employee's position that could justify a proportionate infringement of the employee's freedoms. In these circumstances, according to the Court of Cassation, the dismissal was based “at least in part on a discriminatory ground […] linked to the employee’s expression of his political or religious convictions”.
Hence, the Court of Cassation underlined that the employer’s assessment and decision to dismiss the employee could have been approved if it had been able to provide objective proof of the legitimate reason allowing it to impose a restriction on the employee's freedom of manifestation of his religious and political beliefs.
These are the requirements currently set by the Court of Cassation to ensure a balance between protecting the company's interests and individual freedoms.
As can be seen, these requirements can create significant practical difficulties for the employer due to the complexity in some cases of demonstrating the company’s legitimate and proportionate interest.
The situation may be easier to manage when rules of procedure are in place in the company insofar as this document makes it clear how the restriction of the manifestation of religious beliefs is justified and proportionate to the purpose sought.
As a reminder, any company with a headcount of at least 50 employees must in principle draw up rules of procedure. This document may also be drawn up voluntarily by any other company not legally subject to this obligation.
With regard to the limitation of individual freedoms, such a document takes on its full meaning (obviously when the compulsory formalities applicable to introduction of this document have been observed[2]).
In fact, since its entry into force on 10 August 2016, Article L.1321-2-1 of the French Labour Code provides that "rules of procedure may contain provisions enshrining the principle of neutrality and restricting the manifestation of employees' beliefs if these restrictions are justified by the exercise of other fundamental rights and freedoms or by the necessities of the proper functioning of the company and if they are proportionate to the purpose sought”.
It is therefore now legally permitted for the employer to regulate the visible wearing of any religious symbol in the workplace by inserting a neutrality clause in the rules of procedure.
In a ruling of 22 November 2017[3], the Court of Cassation underlined, for example, that given the lack of neutrality clause in the rules of procedure, a dismissal could not be carried out with regard to an employee who refused to remove clothing with religious connotations, even if the employer demonstrated that the employee had dealings with the company’s customers. This demonstrates the importance of inserting a neutrality clause when the employer seeks neutrality in the workplace.
Nevertheless, in order to be valid and enforceable against employees, such a clause must comply with certain strict requirements on drafting, as regularly emphasised by the Court of Cassation.
In another case which gave rise to a ruling on 14 April 2021[4], the employer inserted a neutrality clause in its rules of procedure in order to impose "a policy of neutrality making it possible to prohibit the wearing of any political, philosophical or religious symbol in the workplace”.
On the basis of this clause, the employer dismissed an employee, a ready-to-wear sales assistant, who refused to remove her headscarf.
In this case, the Court of Cassation underlined, however, that while a neutrality clause may be inserted in the rules of procedure, it is only valid if it is “general, indiscriminate and applies only to employees dealing with customers”. However, this was not the case with the clause analysed in this case, which did not distinguish according to the employee's duties, so the employee’s dismissal was reclassified as unfair dismissal.
Caution in drafting the neutrality clause is therefore essential in order to minimise the risks of reclassification of a termination of an employment contract as unfair dismissal.
The Court of Cassation’s position in this respect may shortly be widened due to the more extensive view of the Court of Justice of the European Union (CJEU).
In general, the CJEU considers that the prohibition on wearing any visible symbol of political, philosophical or religious convictions in the workplace does not constitute direct discrimination since this rule is applied in a general and indiscriminate manner: in this respect, the CJEU's assessment corresponds to that of the Court of Cassation.
Nevertheless, in a judgment of 15 July 2021[5], the CJEU went further by validating that this prohibition can be justified “by the employer's need to present itself in a neutral manner with regard to customers, but also in order to prevent industrial disputes in the company”.
In this case, an employee holding a sales assistant and cashier position was dismissed for refusing to remove her headscarf.
The employer justified its decision, firstly, on the basis of an internal group policy which prohibited the wearing of visible religious signs in particular and, secondly, the need to prevent potential conflicts between employees (conflicts which had already arisen several times in the past).
The CJEU replied firstly that the employer's desire to pursue a policy of neutrality may constitute a legitimate aim that it must be able to demonstrate in particular by the legitimate expectations of customers or the adverse consequences in the absence of such policy and, secondly "both the prevention of social conflicts and the presentation of a neutral image of the employer vis-à-vis customers may correspond to a real need on the part of the employer, which it is for the latter to demonstrate”.
In France, it will be necessary to wait for the next disputes to find out whether the Court of Cassation will also consider that the validity of a neutrality clause can be based on the ground of “prevention of social conflicts”, and no longer solely on the ground of dealing with customers.
[1] Cass. Soc. 8 juillet 2020, n°18-23743
[2] Pour mémoire, pour que l’employeur puisse se prévaloir des dispositions qui y sont insérées notamment en matière disciplinaire, il est nécessaire de soumettre le règlement intérieur à l’avis du comité social et économique (CSE), le transmettre à l’inspection du travail, le déposer au secrétariat-greffe du conseil de prud’hommes et le publier dans l’entreprise, tout ceci au moins 1 mois avant la date prévue pour son entrée en vigueur.
[3] Cass. Soc. 22 novembre 2017, n°13-19855
[4] Cass. Soc. 14 avril 2021, n°19-24079
[5] Affaires C-804/18 et C-341/19 – WABE et MH Müller Handel