La libertà religiosa sul posto di lavoro costituisce una questione delicata in Francia. L'aumento delle rivendicazioni religiose all'interno della società francese coincide con la promozione dei diritti fondamentali dei lavoratori. Sia il contratto di lavoro che il potere manageriale del datore di lavoro inquadrano il regime giuridico della libertà di religione sul posto di lavoro. Esso è anche influenzato dalla natura del datore di lavoro. Il legislatore francese ha recentemente deciso di introdurre una disposizione in base alla quale il datore di lavoro può includere nelle regole interne dell'azienda una clausola che impone la neutralità religiosa. Questa nuova disposizione, anche se compatibile con le norme europee, solleva seri dibattiti.

SOMMARIO:

1. Introduction - 2. Judiciary standpoint - 3. The development of fundamental rights - 4. Developments - I. RELIGIOUS FREEDOM AT WORK IN BETWEEN CONTRACT AND MANAGEMENT POWER - 5. The role of the employment contract - 6. The role of management power - II. THE IMPACT OF THE NATURE OF THE EMPLOYER ON RELIGIOUS FREEDOM - 7. Religious freedom and public services - 8. Religion and 'entreprises de tendance' - NOTE

1. Introduction

In a country severely affected throughout the centuries by religious wars, the proclamation in 1905 of the laic character of the French Republic led, while asserting the freedom of conscience, to separate the state and the cults and to impose a strict neutrality on the public authorities. The constitution states in its article 1 that the French Republic is “laïque” and respect all beliefs. Religious freedom in the public sphere raises majors and intensives political and media debates for many years. This is due to the resurgence of the religious phenomenon in France by the sustainable settlement of a Muslim population and its desire to assert its faith not only in the private space but also in the public one. The debate and tensions mainly focus on religious practices such as wearing religious symbols and especially the Muslim headscarf. Industrial relations did not escape from the upsurge of religion within French society. In reality, for a very long time companies have been confronted with religious requests from certain employees. For example, the massive arrival of manpower in the car industry during the 1970s, mainly from the Maghreb countries, led management to allow workers to pray during their break. Religious freedom raises specific problems at work due to the subordinate situation of employees. In this sense, employers may, using their power of management, impose restrictions to religious freedom. Similarly, employers may have to decide about specific requests from employees in connection with their religious convictions.

2. Judiciary standpoint

However, the phenomenon of claims at work related to religious beliefs must be put into perspective from a litigation standpoint. Indeed, despite the famous case of the childcare «Baby loup» which has been on the judicial and media agenda for more than 10 years [1], the issue of religious claims or manifestations of beliefs at work has given rise to very few legal disputes before labour courts. The huge place given to this issue within the political debates and the medias remains totally out of touch with the real problems companies are facing in practice.

3. The development of fundamental rights

In any case, the rise of the religious phenomenon in French society took place at a moment when fundamental freedoms and civil rights have been strengthened in regards with the employer’s managerial power. In a leading case of 1 February 1980, the Conseil d’Etat, highest court in the legal administrative order, promoted individual rights at work. The court held that the restrictions of personal rights in the internal rules must be justified by the aim sought [2]. A statutory recognition was given in the laws of the 4th of August 1982 which introduced this ruling in the Labour Code. In 1992, the legislator inspired by Professor Gérard Lyon-Caen generalised this solution under article L.1132-1 of the Labour Code. This article prohibits any restrictions of individual and collective rights of employees at work which would not be justified by the nature of the task to be performed nor proportionate to the aim sought. There is no doubt that within the French legal order, religious freedom, which implies the right to manifest its religion, is amongst the fundamental rights. Under article 10 of the Declaration of Human and Civic Rights of 1789, “No one may be disturbed on account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the established Law and Order”. Religious freedom is today protected not only under this provision but also under the prohibition of discrimination contained in the Labour code. Religion is one the criteria considered as discriminatory by article L.1132-1 of the Labour Code. In this respect, French law is in line with European Union legislation by prohibiting discriminations at work excepted when the difference of treatment is justified by a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate (Art. L.1133-1 of the Labour code).

4. Developments

Various elements define the legal regime of religious freedom at work under French labour law. First, religious freedom at work is framed both the contract of employment and the employers’ powers. Second, the nature of the employer has an impact.  

I. RELIGIOUS FREEDOM AT WORK IN BETWEEN CONTRACT AND MANAGEMENT POWER

As the employment defines the scope of religious freedom at work, this fundamental right limits the employers’ powers, especially the management and the regulatory ones. A. THE CONTRACT OF EMPLOYMENT, FRAMEWORK FOR THE EXPRESSION OF RELIGIOUS FREEDOM

5. The role of the employment contract

5. The role of the employment contract If religious beliefs are among the personal rights and individual freedoms, they cannot be invoked by employees to refuse to perform their duties. In fact, there is no religious objection in French law to thwart the employment contract and the resulting obligations for the employee. This solution was clearly upheld in a case of the Cour de cassation of 24 March 1998 which considered lawful a dismissal for gross misconduct of a butcher unwilling to work pig meat, because of its religious convictions [3]. In other words, the execution of the employment contract prevails over religion beliefs of employees. Insofar that the functions fill within the job description, religious beliefs are not a reason for refusing to carry them out. Thus, French law does not give space for reasonable accommodations as in other legal orders. There is no legal obligation for the employer to take into consideration and, a fortiori, to accept employees religious requests that encroach on contractual obligations. While these arrangements may exist in practice, employers are free to accept or refuse employees’ requests provided that it does create no discriminatory practices in between religions. Many undertakings, for example, grant days of rest to employees during religious holidays or organise menus to satisfy religious or dietary constraints. Nevertheless, insofar that the manifestation of religious beliefs interferes with the working duties without the employers’ authorization, it may ground a dismissal for gross misconduct. The legal regime of the manifestation of religious beliefs under French law differs if it does not affect the execution of the employment contract. In this situation, the employees’ fundamental rights may limit the powers given to the employer within the undertaking. B. The regulatory and managerial power of the employer, limitation to the manifestation of religious freedom

6. The role of management power

When the manifestation of religious beliefs at work does not affect the contractual obligations, the employee cannot be blamed for any breach of contract. However, the employer may restricts manifestations of religious beliefs and especially the wearing of religious symbols using his regulatory and managerial powers. In the first place, the employer may introduce restrictions to the manifestations of religious beliefs, in particular in form of clothing, if they arise from genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. French law is in this respect in full compliance with Community Directive 2000/78 of 27 November 2000 on equal treatment in employment and occupation. We know that European courts adopt a strict conception of these essential and decisive professional requirements. Mainly, only the nature of the occupational activity may justify a restriction on the freedom to manifest one’s religious belief. Safety requirements constitute the main reasons admitted for restricting employees from wearing religious signs or clothing [4]. The Cour de cassation has endorsed the ruling of the ECJ refusing to consider that the wishes of customers may constitute a genuine and determining occupational requirement as a base for a discriminatory treatment [5]. Secondly, since the entry into force of the Law of 8 August 2016 and in accordance with Article L1321-2-1 of the Labour Code, the employer may insert a clause of religious neutrality in the company’s internal rules. Restrictions must be justified by the needs of the proper functioning of the undertaking and proportionate to the aim sought. Even if this provision is admitted in EU Law, it gives to the employer the possibility to take into account the wishes of customers. Furthermore, even if this neutrality clause must concern all religious manifestations or symbols, it does not affect all people in the same way. First, the employees who are concerned are exclusively the ones having religious beliefs. Those who do not believe are not affected which might lead to a direct discrimination. Second, there is no doubt that, in the current context, the population affected is mainly the Muslim one, especially through the ban of the Muslim headscarf implied by the neutrality clause [6]. This legal provision has been enacted after the famous “Baby Loup” case that has [continua ..]

II. THE IMPACT OF THE NATURE OF THE EMPLOYER ON RELIGIOUS FREEDOM

The nature of the organisation in which the worker is employed may be of some relevance in two different situations. The organisations may belong to the public service or it may be considered as an undertaking following a particular ethos, so called in France “entreprises de tendance”. A. Religious freedom in public service organisations

7. Religious freedom and public services

Since the entry into force of the law of 9 December 1905 separating the church from the state, the French Republic has become a secular state. This law, which establishes the legal regime of the relations between churches and the State, provides in its article two that the republic does not recognize, pay or finance any worship while affirming in its first article that the French Republic guarantees freedom of conscience. From this rule comes an obligation of neutrality of the State which expresses itself not only with regard to the churches but also in its relations with the citizens. Consequently, the State, including through its agents, civil servants and others, must not be related to any religious affiliation. This obligation of neutrality came later than 1905 since it is only in 2000 that the Conseil d’Etat ruled that religious symbols were prohibited for civil servants [13]. The principle of secularism and the requirement of neutrality implies the absolute prohibition of manifestations of religious beliefs at work, including the wearing of distinctive signs. It applies to civil servants but also any person employed by the State or a public service. This prohibition has been extended to workers employed in the private sector within organisations operating a public service. Deemed to comply with the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms [14], this position was reaffirmed in a judgment of the Cour de cassation of 19 March 2013 concerning an employee of a social security institution [15]. The High Court recalls that the principles of neutrality and secularism of public service apply to all public services, including when these are provided by bodies governed by private law and subject their agents to specific constraints prohibiting them from manifesting their religious beliefs by external signs, in particular clothing. For undertakings not covered by a public service, the framework for the regulation of religious freedom results from the protection provided by Article L 1121-1 and L.1132-1 of the Labour Code as outlined above. B. Religious freedom in the “entreprises de tendance”

8. Religion and 'entreprises de tendance'

Under French law, the legal regime of religion at work may be affected by the nature of the company. In companies considered as “entreprises de tendance”, the law derogate to the rules according to which no element coming from employees personal life may constitute a ground for terminating the employment contract. Those companies such as churches, political parties or trade unions are given a specific legal regime due to the fact that they promote a particular opinion or philosophy. At first, the Cour de cassation admitted those employers may impose to their employees the ethos or rules they were promoting. For example, the Cour de cassation ruled that a divorcee teacher employed by a catholic school who get remarried had been lawfully dismissed for disciplinary reasons [16]. In a second time, the Cour de cassation adopter a stricter point of view knowing a fundamental right of the employee was at stake. It held that such a behaviour may never justify a disciplinary dismissal but may constitute a ground for termination of the employment contract if it causes a “characterised and objective trouble” within the company. This characterised objective trouble may be considered in the light of the nature of the employer [17]. It belongs to the employer to prove that trouble within the company. Under this conception, it could be argued that the freedom to manifest its religion have a narrower scope when the employer appears to be a church or an undertaking having a religious character.

NOTE