Article source: "Peut-on interdire le port du voile en entreprise?", Nabila Fauché El Aougri, Avocat associé, Flichy Grangé (avocats). Le Monde, 07/06/2016.
Faced with an increasing tendency for people to reveal their religious beliefs in the workplace, a business might be tempted to ban employees from wearing headscarves via a specific clause in their company bylaws. Would a probhibition of this sort be lawful in France?
Freedom of religious expression and prohibition of discrimination.
The principle of religious freedom, that is the freedom to practise a religion and to express one’s religious beliefs, is embedded in various supranational and national regulations – including article 9 of the European Convention of Human Rights and article 10 of the French Declaration of the Rights of Man and of the Citizen. This means that any discrimination on the grounds of religion is prohibited.
French labour law (le Code du travail) therefore prohibits any direct or indirect discrimination on the basis of religious beliefs at all stages of an employee’s working life: recruitment, professional training, and career development, right up to termination of the contract (Code du travail art. L. 1132-1). Under French criminal law (Code pénal art. 225-1 to 225-4), a person guilty of such discrimination is liable to a maximum sentence of three years in prison and a 45,000€ fine.
Appropriate and commensurate restrictions.
Employers cannot enforce a total ban on all displays and expressions of religious belief within their company. However, they are allowed to restrict religious freedom, provided that such restrictions are justified by the specific nature of the employee’s duties and that they are proportionate to the objective sought (Code du travail art. L. 1121-1).
Therefore, corporate bylaws can include restrictions on expressions of religious belief, provided that this twofold condition of justification and proportionality is met (Code du travail art. L. 1321-3, 2°).
For instance, in a private French childcare centre, a provision of the company regulations required the staff to observe strict religious neutrality, with respect to the operating conditions of the centre – a small nursery with few employees, all of whom were likely to come into direct contact with children and their parents. The appeal court ruled in this case that an employee who refused to take off her Muslim headscarf, thereby failing to comply with this bylaw, had been lawfully dismissed for gross misconduct (plenary meeting of the French Cour de Cassation, 25th June 2014 n°13-28.369 PBRI, the “Baby Loup” case).
Safety and hygiene regulations may also require employees to wear appropriate protective clothing which is incompatible with religious garments or symbolic accessories (ruling of the French Equal Opportunities and Anti-Discrimination Commission – Halde, 2009-117, 6th April 2099 n° 41).
Can clients influence a ban?
A particular kind of work and the conditions under which it is carried out can justify a difference in treatment when it meets genuine and determining occupational requirements.
Nevertheless, the objective must be legitimate and the requirement proportionate (Code du travail art. L. 1133-1, transposing article 4, paragraph 1 of the EU’s Employment Equality Framework Directive 2000/78/EC).
According to the French government’s secularism watchdog (l’Observatoire de la laïcité), negative prejudices on the parts of clients or co-contractors cannot be considered a professional necessity justifying the restriction of religious freedom.
Some courts of appeal have already ruled that when an employee is in contact with clients or patients, the prohibition of Muslim headscarves is lawful (court of appeal of Paris, 16th March 2001, court of appeal of Versailles, 23th November 2006, n° 05-5149).
France's top appeal court, the Cour de cassation is currently tackling precisely this issue: a research engineer who provided computer services for her employer’s clients used to wear a Muslim headscarf at work. One of the clients complained about this. So the employer asked her to stop wearing her headscarf while working with clients. After she refused to do so, she was dismissed for gross misconduct.
In order to rule on this case, the court has referred it to the European Court of Justice (ECJ) for a preliminary ruling on whether or not the client of an IT consulting company refusing to accept computing services from an employee of the company who wears a headscarf constitutes a genuine and determining occupational requirement as set out in the European directive and might therefore justify the restriction of her freedom to display her religious beliefs (Cour de cassation, social chamber, 9th April 2015 n° 13-19.855 FS-PBI).
Belgian Example?
The Cour de cassation in Belgium has referred a similar case to the ECJ, asking for a preliminary ruling on the legality of a company using a general regulation prohibiting visible symbols of political, philosophical and religious affiliation from being worn in the workplace as a reason for banning a Mulsim receptionist from wearing a headscarf.
The Advocate General’s opinion on the case has just been published. It states that a ban of this sort can be allowed as long as it is not “based on stereotypes or prejudice in relation to one or more specific religions — or even simply in relation to religious beliefs generally.”
The prohibition can be justified “in order to enforce a policy of religious and ideological neutrality pursued by the employer in the company concerned, in so far as the principle of proportionality is observed in that regard.” (Opinion of Advocate General Kokott 31 May 2016, Case C-157/15).
While this ruling does not create a binding precedent for the ECJ, it provides a fascinating insight. In the French case, might the client’s request be considered as “based on stereotypes or prejudice in relation to one or more specific religions”, and thus no justification for a ban on wearing the headscarf? It remains to be seen what the ECJ’s preliminary ruling will be, and what the French Cour de cassation will ultimately decide.
Translated by Sonia Vogel and Emilie Blanc.
Editing by Sam Trainor.