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.
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...