Religious expression in the workplace: what are the rights and powers of the employer?

Wearing a religious symbol, requesting time off for a holiday, prayer time, refusal to perform certain tasks, proselytizing… Religious practice in the workplace can place the employer in delicate situations.

In a private company, the principle is that of freedom of conscience and religion. An employee may hold religious beliefs and, within certain limits, express them in the workplace. However, this freedom does not exempt them from their professional obligations.

An employer can regulate certain practices when they disrupt the company's operations, compromise health or safety, infringe upon the rights of others, or prevent the performance of the employment contract. They can also introduce a neutrality clause, but only under strict conditions.

How can we practically manage religious expression in the workplace without committing discrimination?

Religious freedom is the principle in private enterprise

Freedom of conscience and freedom of religion are fundamental freedoms. They include the freedom to have a religion, not to have one, to change one's religion, and, within certain limits, to manifest one's beliefs.

Unlike public officials, employees of private companies are not, in principle, subject to a general obligation of neutrality or secularism.

A private employer cannot therefore prohibit all religious expression simply by invoking the principle of secularism. Nor can they make an unfavorable decision against an employee because of their real or perceived religious beliefs.

ArticleL. 1132-1 of the French Labour Code prohibits, in particular, discrimination based on religious beliefs in matters of:

• recruitment;
• remuneration;
• assignment;
• training;
• professional advancement;
• contract renewal;
• of sanction;
• dismissal.

A measure based directly on an employee's religion is likely to be overturned. In the event of discriminatory dismissal, the employee may, in particular, request reinstatement or obtain specific compensation.

A distinction for companies providing a public service

The situation is different when a private-law body participates in carrying out a public service mission. Employees directly assigned to this mission may be subject to the requirements of secularism and neutrality inherent in public service, even when they are not in personal contact with users.

Before adopting a restriction, it is therefore necessary to determine whether the employer is an ordinary private company or whether its activity falls within the execution of a public service mission.

Can an employee wear a religious symbol at work?

In a private company, wearing religious symbols is generally permitted. This freedom can apply to clothing, scarves, jewelry, or any other symbol expressing a belief.

An employer cannot prohibit a specific religious symbol solely on the grounds that it does not fit the company's image or that a client does not wish to be in contact with an employee who wears it.

The Court of Cassation has thus ruled that the prohibition imposed on an employee from wearing an Islamic headscarf, in the absence of an applicable neutrality clause and solely on the basis of the company's commercial image, constituted discrimination directly based on her religious beliefs (Cass. soc., April 14, 2021, No. 19-24.079).

Similarly, a client's discriminatory wishes do not constitute an "essential and determining occupational requirement" that would allow for a ban on wearing a religious symbol.

Customer contact alone is therefore not sufficient to justify a ban.

Under what circumstances can an employer limit a religious practice?

ArticleL. 1121-1 of the French Labor Code authorizes restrictions on the rights and freedoms of employees when they are:

• justified by the nature of the task to be performed;
• proportionate to the objective pursued.

The employer must be able to identify a concrete risk or difficulty. An abstract assessment, a simple commercial preference, or an unsubstantiated fear of negative reactions is not sufficient.

Health, hygiene and safety requirements

A restriction may be justified when an item of clothing, an accessory, or a practice creates a real risk to health or safety.

This may include, in particular:

• the mandatory wearing of a helmet, mask or protective equipment;
• the risk of a garment being caught in a machine;
• compliance with a health protocol;
• hygiene rules applicable to catering, care or certain industrial environments;
• the impossibility of properly carrying out a security mission.

However, the restriction must be precisely tailored to the identified risk. A blanket ban would be excessive when adapting clothing or equipment can ensure safety.

The proper execution of the employment contract

Religious beliefs do not exempt an employee from performing the tasks stipulated in their employment contract or from respecting the employer's lawful instructions.

An employee cannot, in principle, refuse:

• to work with a person because of their gender or beliefs;
• to carry out a task that normally falls within his/her duties;
• to respect collective schedules;
• to apply the safety rules;
• to participate in mandatory vocational training.

However, a refusal should not automatically be considered misconduct. The employer must verify the exact nature of the task, the terms of the contract, the reasons given, the consequences for the department, and the possible existence of a solution compatible with the company's organization.

Protecting the rights of other employees

A religious practice may be limited when it infringes upon:

• to the dignity of another employee;
• to equality between women and men;
• to the freedom of conscience of colleagues;
• to the prevention of harassment or discrimination;
• to the smooth functioning of the team.

A conviction cannot justify insulting, discriminatory or demeaning remarks, nor the refusal to recognize the authority of a leader because of their sex.

Is the employer required to accept absences for religious reasons?

An employee does not have a general right to be absent from their job to practice their religion or celebrate a religious holiday.

The employee can request a paid day off, a day of rest, or an authorized absence. The employer then reviews this request according to the usual rules applicable within the company.

Refusal is possible when it is based on objective reasons, for example:

• continuity of service;
• a period of high activity;
• insufficient staff;
• competing applications already accepted;
• a specific constraint related to the position.

The decision must be independent of any assessment of the religion concerned. Comparable applications must be processed according to consistent criteria in order to avoid discriminatory treatment.

Should the company provide a prayer space?

In principle, no text requires private employers to create a place of prayer in the company.

Individual prayer may be permitted during a break if it does not disrupt work, does not contravene the rules for using the premises, and does not compromise the safety or rights of other employees.

The employer can regulate this practice by prohibiting, in particular:

• the occupation of premises intended for another use;
• praying during working hours without permission;
• the blocking of a passage or emergency exit;
• the sustainable transformation of a collective space into a place of worship;
• any pressure exerted on other employees.

The rules should be based on the organization of work and the use of premises, and not on the religion practiced.

Can religious proselytism be punished?

Simply discussing religion with colleagues does not necessarily constitute an abuse. An occasional, freely given conversation falls, in principle, under the umbrella of freedom of expression.

However, the behavior can become wrongful when it results in:

• persistent or repeated solicitations;
• pressure on colleagues;
• the distribution of documents despite a justified prohibition;
• the use of professional tools for propaganda purposes;
• discriminatory or threatening remarks;
• a disruption to the company's operations;
• the abusive exercise of hierarchical authority to influence subordinates.

Before imposing any disciplinary action, the employer must establish specific facts. It is important to distinguish between the expression of a belief, which is protected, and abusive behavior, which can be sanctioned.

How to establish a neutrality clause?

ArticleL. 1321-2-1 of the Labour Code allows for the inclusion in the internal regulations of a provision establishing a principle of neutrality and restricting the expression of employees' beliefs.

However, this clause is only lawful if the restrictions are justified by the exercise of other fundamental rights and freedoms or by the needs of the proper functioning of the company, and if they are proportionate to the objective pursued.

The clause must be general and undifferentiated

The rule should not target a particular religion or a specific symbol. It should apply, under the same conditions, to political, philosophical, and religious symbols.

A clause targeting only the Islamic veil, for example, would present a major risk of direct discrimination.

The Court of Justice of the European Union acknowledges that an internal rule prohibiting the visible wearing of any political, philosophical, or religious symbol may, under certain conditions, not constitute direct discrimination. It may, however, lead to indirect discrimination and must then be objectively justified (CJEU, 15 July 2021, Joined Cases C-804/18 and C-341/19).

The employer must demonstrate a genuine need

Simply declaring a policy of neutrality is not enough. The employer must demonstrate the existence of a genuine need, assessed in particular with regard to:

• legitimate expectations of customers or users;
• of the nature of the activity;
• the rights of other people;
• adverse consequences that the absence of a neutrality policy would actually have on the company;
• of the objective of preventing social conflicts.

A simple consideration of image or a subjective customer preference does not justify a ban.

The restriction must be strictly necessary

The clause must be limited to employees, functions and situations for which the need for neutrality is established.

It is therefore necessary to determine precisely:

• the categories of employees concerned;
• the circumstances in which the rule applies;
• the signs or manifestations referred to;
• the objective reasons justifying its application.

A ban that applies indiscriminately to all employees, in all premises and regardless of their functions, risks being deemed disproportionate.

The policy must also be applied consistently and systematically. An employer cannot tolerate certain symbols or beliefs while prohibiting others.

The clause must comply with the procedure applicable to the internal regulations

The neutrality clause must be included in the internal regulations or in a service note subject to the same regime.

Its implementation notably requires:

• prior consultation with the social and economic committee;
• the transmission of the internal regulations to the labor inspectorate;
• the completion of the filing and publication formalities;
• compliance with the entry into force deadline;
• effective information for employees.

An oral instruction or an informal directive aimed at a specific employee does not offer the necessary legal certainty.

What should be done before disciplining an employee?

Disciplinary action should remain a last resort. Before making any decision, the employer must objectively analyze the situation.

It is recommended to follow these steps:

1. Identify precisely the behavior in question, without presuming its religious significance.
2. Speak with the employee and gather their explanations.
3. Check the applicable rules: contract, internal regulations, service note, collective agreement and safety instructions.
4. Describe the specific difficulty encountered by the company.
5. Investigate whether a less restrictive measure can resolve the situation.
6. Verify that comparable situations have been handled consistently.
7. Choose, where appropriate, a sanction proportionate to the established facts.

When an employee refuses to comply with a lawful neutrality clause, the employer must consider, taking into account the constraints of the company and without imposing an additional burden on the employee, whether a position not involving the same constraints can be offered before considering dismissal.

What are the risks of mismanaging religious issues?

An insufficiently justified decision can expose the employer to:

• the cancellation of a sanction or a dismissal;
• a conviction for discrimination;
• the reinstatement of the employee;
• the payment of damages;
• damage to the company's image;
• a deterioration of the social climate;
• In certain situations, criminal prosecution may occur.

Prudence consists of reasoning from objective facts and the requirements of the position, and not from the employee's supposed religion or the visibility of the symbol worn.

How to prevent difficulties related to religious expression in the workplace?

The employer can secure their practices by:

• training human resources managers and managers;
• adopting objective criteria for leave and authorized absences;
• recalling the rules relating to breaks, use of premises and safety;
• providing for a procedure for reporting abusive behavior;
• checking the drafting of the internal regulations;
• documenting the reasons justifying each restriction;
• prioritizing dialogue before initiating disciplinary proceedings.

Managing religious expression in the workplace is therefore based on a balance: protecting the freedom of conscience of employees while ensuring safety, respect for others and the smooth functioning of the company.

The law firm ARST Avocats assists employers in analyzing situations related to religious practice, drafting or revising internal regulations, implementing a neutrality clause, and managing disciplinary procedures.

The employment law department of ARST Avocats supports the management of social relations within the company.

Article written by Chaouki Gaddada, partner at the law firm Arst Avocats in charge of the social department