Discussions on religious beliefs, wearing religious symbols… what are the rights of employees in the workplace and what limits can the employer set?
Religious expression in the workplace creates a sensitive situation that requires balancing employees' religious freedom and the expression of their religious beliefs (I) with the employer's managerial authority and various obligations (II). To anticipate certain situations, the employer can therefore implement a principle of neutrality within the company (III).
Religious freedom of employees
Associated with freedom of conscience, freedom of religion is a fundamental freedom to believe or not in a religion, to practice or not practice a religion, or to change it.
In a professional setting, employees retain their freedom of religion. Employers must therefore not discriminate between employees based on religious beliefs, whether during the hiring process or the performance of the employment contract. Such a decision would otherwise be discriminatory, as it would be based on an unlawful ground.
Beyond their freedom of religion, employees also retain within the private company a freedom to express their religious beliefs or, conversely, their non-belief.
It is important to remember that this freedom of expression must not, of course, be abused. Therefore, an employer can discipline an employee who engages in proselytizing within the company.
Apart from any consideration of abuse of employee freedom, there are situations within the company, which are inherently sensitive, where the employer must manage a religious event, resulting from a manifestation of an employee's religious beliefs, while reconciling their managerial authority and their various obligations.
The employer's management of religious expression in the workplace
The individual freedoms of employees, particularly in matters of religion, are guaranteed by the Labor Code.
However, the exercise of this freedom must not hinder the proper execution of the employment contract. In other words, if an employee refuses to comply with instructions or perform certain tasks assigned to them within the scope of their duties, this refusal constitutes misconduct that the employer may sanction.
Furthermore, the employer may also impose restrictions on this freedom provided that they are both justified by the nature of the task to be performed and proportionate to the objective pursued.
Thus, an employer can absolutely restrict the freedom to manifest religion for reasons of health, hygiene or safety.
For example, the dismissal of a nurse is justified for wearing a distinctive religious symbol when the hospital's dress code prohibited the wearing of jewelry, religious or otherwise, for hygiene and safety reasons.
When an employer decides to restrict certain manifestations of the religious beliefs of its employees, it must nevertheless ensure that this restriction is justified and proportionate in a totally objective and general manner.
Thus, unless a principle of neutrality is imposed by the internal regulations and the employer can objectively demonstrate a security imperative, an employer whose activity is carried out in Yemen cannot dismiss an employee wearing a beard on the grounds that wearing a beard would be likely to demonstrate a religious and political conviction and that this would be likely to cause a risk to the safety of other employees and customers.
Similarly, in the absence of a neutrality clause, an employer cannot sanction an employee wearing a headscarf on the grounds that a client does not wish to deal with her because of her religious beliefs.
To manage this type of situation, the employer can include a neutrality clause in the internal regulations beforehand.
The principle of neutrality
Article L.1321-2-1 of the Labour Code gives private companies the option of including provisions in their internal regulations imposing neutrality within the company.
Such a clause thus allows the employer to restrict the expression of employees' personal beliefs, and in particular religious beliefs.
Since freedom, particularly religious freedom, remains the rule within private companies, the introduction of a neutrality clause in the internal regulations must also, in order to be lawful:
To be justified by the nature of the task to be accomplished
The inclusion of such a clause in the internal regulations can therefore be justified by imperatives in matters of safety or hygiene, or by the needs of the company's activity, particularly in the event of contact with customers or contact with young children.
To be proportionate to the intended purpose
To be proportionate, the clause must only apply to employees in situations requiring neutrality in the workplace. For example, employees who do not interact with customers should not be subject to a neutrality clause justified by such interaction.
The employer must ensure that employees have been duly informed of the existence of this clause, which must also be general, that is to say, concern all beliefs, whether political, philosophical or religious, without distinction.
If an employee refuses to comply with the principle of neutrality put in place, the employer must, before sanctioning the employee, try to find a position for which the employee would not be affected by the neutrality clause.
Finally, the principle of neutrality must be applied consistently within the company. Therefore, an employer should not have previously shown tolerance towards the display of religious symbols only to suddenly become overly strict.
