France: How To Tackle Religion In The Workplace

Due to the recent terrorist attacks and headlines on religious extremism across Europe, the question of restricting religious expression in the workplace is becoming more prevalent for French employers. Employers would agree that the workplace should not be a place where religious tensions should arise. Until recently, employers have had few practical guidelines on how to restrict religious expressions at work, or whether these types of restrictions are lawful. Two recent decisions by the Court of Justice of the European Union (CJEU) on 14 March 2017 and a practical guideline from the French Ministry of Labour provide several helpful responses, which we summarise below.

Conflicting Principles

Employees have fundamental rights that need to be respected: the freedom of religious belief and the right to express such belief; the right not to be discriminated against on grounds of religion; and the right to equal treatment. Employers have the right to run a business and the right to control and organise their workforce, within reason. In the public sector only, secularism at work means that French civil servants are not entitled to express their religious beliefs in the workplace. For the private sector, the Labour Law (Loi Travail) of August 2016 introduces the principle of neutrality.

In light of this, the French Ministry of Labour recently published a practical guideline to religious practice in the form of questions and answers. Though the practical guideline is not legally binding and contains no sanctions, it is an innovative document that interprets the law and shows the critical religious issues in the workplace.

The underlying principle is that an employee's religion is not in itself a ground for lawful differential treatment, as it would be a discriminatory measure. The employer, when prohibiting, limiting or sanctioning an employee's behaviour linked to a religion, will have the delicate task of relying on other legal principles.

Practical Situations and Suggested Solutions by the Ministry

The Ministry of Labour's guideline provides some helpful examples:

Sanctions: The employer should sanction an employee who refuses to acknowledge a female colleague on grounds of religion. This is a sexist behaviour prohibited by the Labour Code.

Health and Safety: The employer may stop employees from wearing a kippa, scarf or Sikh turban when this is justified by external factors, such as complying with mandatory hygiene rules in a medical environment, a factory or a kitchen; or complying with health and safety rules where wearing a safety helmet is compulsory. The employer has a duty of care towards his/her employees, e.g. during Ramadan when he/she might have to stop a fasting employee from working if there's a risk of him/her being in danger (e.g. a crane driver). The Ministry of Labour's practical guide suggests, with reference to the above example, that the employer has the right not to pay the employee for the days he/she is "fasting". In practice, this suggestion should be considered carefully when withholding salary, as the risk of claims is high. The employer will need to demonstrate that the employee's fasting is putting him/her and others in danger.

Paid leave: The employer does not have to accept an employee's request to take time off for a religious event. However, if the employer refuses, it must be for objective reasons relating to the smooth running of the company.

Neutrality in Religion - What Employers Can Do

The Loi Travail introduces the principle of neutrality as being the equivalent of secularism, applied to companies in the private sector. The employer now has the possibility of including in company rules provisions that promote neutrality inside the company and that limit the extent employees can express their personal convictions and opinions, especially religious beliefs. However, this is not without limits. The principle of neutrality can only be included in the rules when it can be justified by the nature of the employees' tasks, it is necessary for the smooth running of the company, or when it is linked to the exercise of other basic rights and freedoms and is proportionate to the desired objective.

When drawing up policies, employers should in any event involve unions and other staff representatives, as the religious issue covers working conditions, working organization, health and safety issues, all of which are part of their intervention authority.

Consecration of the Principle of Neutrality by the CJEU

The CJEU had been asked the following prejudicial question: is an employer allowed to prevent an employee who is in contact with customers from wearing a head scarf because the customer requests this (French case) or because the obligation of neutrality is provided in the Internal Rules (Belgian case)?

The CJEU rendered its decisions communicated in a press release dated 14 March 2017: an internal rule of an undertaking, which prohibits the visible wearing of any political, philosophical or religious sign, does not constitute direct discrimination in itself. However, in the absence of such internal policy stating the principle of neutrality, an employer cannot take into account a customer's wishes as an occupational requirement to sanction an employee—such measure is deemed discriminatory.

This CJEU decision is a strong invitation to introduce the principle of neutrality in a company's internal rules to avoid future claims, while ensuring that the measures are justified by a legitimate aim and genuinely pursued in a consistent and systematic manner.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.