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Religion et travail

The perception and status of religion at work in French law differs significantly between the private and public sectors.

Private sector

Religion at work in the private sector is governed by two guiding principles : employees’ religious freedom and non-discrimination on the grounds of religion. Employees’ religious freedom must not be subject to restrictions that “are not justified by the nature of the task to be performed or proportionate to the aim sought” (Article L. 1121-1 of the Labour Code). A balance must therefore be struck between employees’ religious freedom and companies’ interests.
An employer may refuse to authorise absences if such absences disrupt the organisation of work in the company, for example if the presence of the employee is necessary for the normal functioning of the company (Court of Cassation, 16 December 1981, no. 79-41300 Balki v. SARL Poulet du roy : an employee was dismissed without notice for not having come to work on the day of the Muslim festival of Eid-el-Kabir, thus preventing an important delivery planned for that day, despite her employer refusing to authorise her absence).
Restrictions on employees’ religious freedom may be justified on health or safety grounds, involving, for example, the obligation to wear a uniform (see the decision of the HALDE (National authority for tackling discrimination and promoting equality) replaced by the Défenseur des droits (the authority in charge of defending citizens’ rights), which accepted the dismissal of an employee who refused to remove her veil to wear the hairnet imposed in the catering service of a retirement home, no. 2010-166, 18 Oct. 2010). Company image may also be invoked as justification if employees work with customers and must, in view of their duties, convey a certain image, in line with the products that they are responsible for selling or representing. Specific dress requirements and restrictions on wearing religious attire are therefore legitimate.
Since the law of 8 August 2016, it has been possible for a company to include in its internal regulations "provisions enshrining the principle of neutrality and restricting the expression of employees’ beliefs if these restrictions are justified by the exercise of other fundamental freedoms and rights or by the requirement of the company functioning appropriately and if they are proportionate to the aim pursued." (Article L. 1321-2-1 of the Labour Code). These provisions reflect a lengthy legal drama sparked by the dismissal of a childcare worker who refused to remove an Islamic headscarf. After initially ruling that "the principle of secularism established by Article 1 of the Constitution is not applicable to employees of employers governed by private law who do not manage a public service" (Court of Cassation, 19 March 2013, Baby Loup, no. 11-28845), the Court of Cassation accepted that the nursery’s internal regulations could include compliance with the principles of secularism and neutrality and thus restrict employees’ freedom to display their religion (Court of Cassation, 25 June 2014, no. 13-28369).

Furthermore, the Labour Code prohibits discrimination based on such factors as membership or non-membership, whether real or assumed, of a given religion (Article L. 1132-1 of the Labour Code and Law No. 2008-496 of 27 May 2008 laying down various provisions to adapt to Community law in the field of tackling discrimination). Individuals may not be excluded from a recruitment procedure due, in particular, to their religious beliefs (Art. L. 1132-1 of the Labour Code). As such, religious criteria must not be specified in a job offer (Art. L. 5321-2 of the Labour Code), candidates must not be questioned about their religious beliefs, and visible religious signs must not be taken into consideration (Article L. 1221-6 of the Labour Code).
The case of Société Micropole Univers (see current debate from 2016) can be approached from a non-discrimination perspective. This arose from the dismissal of an employee in response to a customer’s request for the company’s IT services not to be provided by an employee wearing an Islamic headscarf. The main issue was to determine whether the request expressed by one of the company’s customers, resulting in a restriction on wearing clothing related to religious beliefs in the workplace, could be proven to be a difference in treatment on discriminatory grounds. In its judgement of 9 April 2015 (13-19855), the Court of Cassation stayed proceedings and referred a question for a preliminary ruling to the Court of Justice of the European Union (CJEU) on the interpretation of Council Directive 2000/78 of 27 November 2000 (of which Articles L. 1132-1 and L. 1133-1 of the French Labour Code prohibiting discrimination are the legislative transposition into French law).

Public Sector

In the public sector, the principle of secularism is applicable, imposing an obligation of religious neutrality on public sector workers. The principle of state neutrality means that "the administration and public services must provide every guarantee of neutrality, but must also display the appearance of doing so, so that the user cannot doubt this neutrality." (National advisory committee on human rights, Opinion on secularism, 26 September 2013).
This rule was clearly laid down by the Council of State : in an opinion of 3 May 2000 (Demoiselle Marteaux, no. 217017) it considered that where workers wear a sign intended to indicate membership of a religion, this constitutes a breach of their obligations.
Since the law of 20 April 2016, the obligation to comply with the principle of secularism has been expressly included in the staff regulations of civil servants as laid down in amended law no. 83-634 of 13 July 1983 regarding the rights and obligations of civil servants.
This obligation of neutrality, and the strict limits on expressing religious beliefs arising from it, has a broad scope that encompasses all public sector workers. The European Court of Human Rights ruled that the non-renewal of a fixed-term contract for a state-employed hospital worker did not violate rules on freedom of religion and that "the national authorities did not exceed their discretion by finding that there was no possible reconciliation between Mrs Ebrahimian’s religious beliefs and the obligation to refrain from manifesting them, as well as by deciding to prioritise the requirement of state neutrality and impartiality." (ECtHR, 26 November 2015, Ebrahimian v. France, No. 64846/11). Public sector workers must also refrain from proselytising, not only towards public service users but also their colleagues.
In addition, the duty of neutrality extends to public service activities carried out by organisations governed by private law. As such, even if such organisations are subject to the provisions of the Labour Code, their employees "are nevertheless subject to specific constraints resulting from the fact that they are involved in providing public services, which prohibit them in particular from displaying their religious beliefs through external signs, particularly clothing" (Court of Cassation, 19 March 2013, CPAM, no. 12-11690, concerning an employee of a health insurance fund).
Nevertheless, "freedom of opinion is guaranteed for civil servants" (Article 6 of the Law of 13 July 1983 concerning the rights and obligations of civil servants), including the freedom to believe or not to believe.
Certain adjustments to the working time of public sector workers are therefore authorised in the name of religious freedom, insofar as these adjustments remain compatible with the requirements of normally functioning public services. A non-exhaustive list of religious holidays for which agents may request a leave of absence is set out and updated in a circular. Staff requests may not be rejected on principle (a receptionist in a museum was permitted to request a leave of absence to celebrate Good Friday, Corpus Christi and the festival of the Miraculous Medal : Council of State, 12 February 1997, no. 125893). It is the department manager’s duty to assess whether public sector workers’ absences are compatible with normal operational requirements for the public service concerned (it was thus deemed that the rejection of requests made by a public sector worker, the caretaker of a building, for absences allowing him to attend a place of worship at times at which his presence was necessary for the service to operate under normal conditions did not constitute an illegal violation of religious freedom : Council of State, 16 February 2004, no. 264314).
Public sector workers also benefit from the principle of non-discrimination, both at the time of their recruitment and throughout their career (Article 6 of the Law of 13 July 1983 on the rights and obligations of civil servants). A public sector worker who was a candidate in an internal police officer recruitment competition thus secured the annulment of the decision issued by a panel that had asked him questions relating to his religion (Council of State, 10 April 2009, no. 311888).

 Association française de droit du travail, Synthèse des travaux du groupe AFDT Le fait religieux en entreprise, 2016.
(French Labour Law Association, Summary of work carried out by the association’s group on Religion in business)
 Avis du Conseil économique, social et environnemental, Le fait religieux dans l’entreprise, novembre 2013.
(Opinion of the Economic, Social and Environmental Council, Religion in business)
 Conseil d’Etat, Le juge administratif et l’expression des convictions religieuses, novembre 2014.
(Council of State, The administrative judge and expression of religious beliefs)
 Observatoire de la laïcité, La gestion du fait religieux dans l’entreprise privée, 2015.
(Observatory on secularism, Management of religious issues in private companies)
 Portail de la fonction publique, Laïcité et fonction publique.
(Public Service Portal, Secularism and Public Service)
 Bernard Callebat, Hélène de Courrèges et Valérie Parisot (dir.), Religions et droit du travail, regards d’ici et d’ailleurs [Religions and labour law, perspectives from here and elsewhere], Bruylant, 2017.

D 10 mars 2017    AAnne Fornerod

CNRS Unistra Dres Gsrl

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