Discussion on religious beliefs, wearing a religious sign… what are the rights of employees in the professional environment and what are the limits that the employer can set?
The religious fact in the company indeed creates a sensitive situation whose management requires reconciling religious freedom and the manifestation of the religious convictions of employees (I), with the management power of the employer and its various obligations (II). To anticipate certain situations, the employer can therefore set up a principle of neutrality within his company (III).
The 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 a religion or not or to change it.
In a professional setting, the employee retains this freedom of religion. The employer must therefore not make any distinction between employees based on religious beliefs, whether in particular when hiring or performing the employment contract. Such a decision would otherwise be discriminatory since it is based on a prohibited ground.
Beyond their freedom of religion, employees also retain within the private company the freedom to manifest their possible religious convictions or, conversely, their non-belief.
It should be remembered here that this freedom of expression must obviously not give rise to abuse. Thus, the employer can sanction the employee who engages in proselytizing practices within the company.
Apart from any consideration of abuse of freedom of the employee, there are situations within the company, by nature sensitive, where the employer must manage a religious fact, resulting from a manifestation of the religious convictions of an employee. , while reconciling its management power and its various obligations.
The management of the religious fact in the company by the employer
The employee's individual freedoms, particularly in matters of religion, are guaranteed by the Labor Code.
Nevertheless, the exercise of this freedom must not hinder the proper performance of the employment contract. In other words, if an employee refuses to comply with directives or to perform some of the tasks incumbent on him within the framework of his function, this refusal constitutes a fault that the employer can sanction.
Furthermore, the employer may also impose restrictions on this freedom if they are both justified by the nature of the task to be performed and proportionate to the aim sought.
Thus, an employer may well 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 sign when the hospital dress code prohibited the wearing of jewellery, religious or not, for health and safety reasons.
When the employer decides to restrict certain manifestations of the religious beliefs of his employees, he 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 a employee wearing a beard on the grounds that wearing a beard would be likely to bear witness to a religious and political conviction and that it 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 the veil 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 provide a neutrality clause upstream in the internal regulations.
The principle of neutrality
L.1321-2-1 of the Labor Code gives private companies the option of including in their internal regulations provisions imposing neutrality within the company.
Such a clause thus allows the employer to restrict the expression of the personal convictions of the employees, and in particular of the religious convictions.
Since religious freedom in particular remains the rule within private companies, the introduction of a neutrality clause in the internal regulations must also, in order to be lawful:
Be justified by the nature of the task to be performed
The introduction of such a clause in the internal regulations can thus be justified by imperatives in terms of safety or hygiene, or even by the needs of the company's activity, in particular in the event of contact with the clientele or contact with young children.
Be proportionate to the aim sought
To be proportionate, the clause must only apply to employees placed in a situation requiring respect for neutrality in their workplace. For example, employees who are not in contact with customers should not be affected by a neutrality clause which would be justified by contact with customers.
The employer must ensure that the 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.
In the event of an employee's refusal to comply with the principle of neutrality 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. Thus, the employer must not have shown tolerance for the display of religious signs in order to suddenly show zeal.
