On April 14th, 2021 (n ° 19-24079), that is to say four years after its last resounding judgment on the subject, the Court of Cassation again took a position on the discriminatory nature of the dismissal pronounced because of the refusal by an employee to withdraw its veil in the workplace [[Cass., Soc., April 14th, 2021, n ° 19-24079: https://www.courdecassation.fr/jurisprudence_2/chambre_sociale_576/479_14_46873.htm]].
1) The context
An employee was hired as a saleswoman by Camaïeu on July 11, 2012.
When she returned from parental leave on July 28, 2015, she wore the veil.
The textile manufacturer then asked him to remove it.
The applicant refusing to do so, the employer exempted her from activity as of August 6, 2015, before dismissing her on the following September 9 for real and serious cause.
The employee therefore appealed to the prudential court in February 2016. She won her case before the Toulouse Court of Appeal on September 6, 2019. For the latter, the dismissal should be annulled.
The employer therefore appealed on points of law.
2) The employer's arguments
In order to support its appeal, the employer has endeavored to provide proof of an internal policy of neutrality that pre-exists the dismissal of the employee.
To this end, it used in particular an article of its rules of procedure, which would put in place "collective restrictions" on the subject.
Moreover, for the company, by requiring the existence of a formal source establishing neutrality, the trial judges would have sought an exorbitant condition of what the law initially provides.
Still according to the employer, the Court of Appeal ruled "without examining the arguments before it:
• the nature of the activity carried out by the employee,
• (ii) the conditions for carrying out Ms. X's activity ... relating to the fact that “The salesperson's functions are mainly carried out on a sales area specifically built around the client's eye, and with for the purpose of promoting the company's products ”, and“ within a working community ”,
• (iii) “the company's desire to guarantee compliance with the determination of its retail areas”,
(iv) the “will of the company to make prevail the respect of the contractual commitments accepted by Mrs X ...”,
• (v) "the spontaneous, ostentatious and permanent nature of the methods of expressing her religious convictions retained by Ms. X ...",
• (vi) "the consistent position adopted by the company each time it has found itself [faced] with the difficulty under discussion",
• (vii) “the length of time during which Ms. X ... had herself performed her duties without wearing a headscarf”,
• (viii) "the right to employment of other employees of the company",
• (ix) “the ability of Ms. X ... to find a job compatible with the outfit illustrated by her exhibit n ° 4“, and “the nature of the practice under discussion”, ”
In addition, the executive power argument was raised. Indeed, according to the ready-to-wear brand, the employer "is the sole judge of the consistency of the employee's clothing with the image of the company" so "that it does not belong to the judge to substitute its assessment for that of the employer, except to characterize an abuse of the employer ”.
As a result, the Court of Appeal, which “recognized that it is undeniable that the change in the employee's clothing presentation disrupted the pre-established identities that the employer considered essential to the development of its commercial activity based on a design of the image of women contrary to that commonly perceived among those who wear the Islamic headscarf ”, would thus have violated the principle of freedom of enterprise.
Finally, the company tried to argue that "if the wearing of the Islamic veil contributes to the dignity of women, it is only in the eyes of the Muslim religion", and not with regard to the concept of the dignity of women. with regard to "Union law and the laws of the French Republic which only consider the wearing of the Islamic veil as a matter of freedom of conviction".
Nevertheless, according to the Court of Appeal, "the taking into account by a company of the expectations of customers on the physical appearance of those who serve them" would have the effect of making "the economic rules of competition prevail over the" equal dignity of human persons ”.
3) The solution unveiled by the Court of Cassation
3.1) The need for a general internal rule
The Court of Cassation begins by recalling the principles applicable to restrictions on religious freedom.
Indeed, for the latter to be applied, they must be "justified by the nature of the task to be performed, meet an essential and decisive professional requirement and proportionate to the goal sought".
Article L. 1321-5 of the Labor Code provides that a “political, philosophical and religious” neutrality clause may be inserted in the internal regulations, provided that it is “general” and that it is not applied “only to employees who are in contact with customers”.
Once these principles are recalled, the judges of the High Court rule precisely on the case of the absence of a neutrality clause.
And for good reason, in the absence of a general clause, the prohibition, formulated orally to the employee and specifically directed against the wearing of the veil, necessarily constitutes direct discrimination "based on the religious convictions of the person concerned".
However, expressly targeting one religion in relation to others constitutes direct discrimination, which is obviously prohibited.
Nevertheless, an express rule of general application, covering all beliefs, whether religious, political or philosophical, may help to ground the request for the removal of the veil.
3.2) Insufficient commercial image as a professional and decisive requirement
In addition, the Court of Cassation holds that the employer "explicitly placed itself in the field of the image of the company with regard to the infringement of its commercial policy", likely "to be upset to the prejudice of the company by wearing the Islamic headscarf by one of its saleswomen ”.
However, "the alleged expectation of customers on the physical appearance of saleswomen in a clothing retail trade" is not an "essential and decisive professional requirement", within the meaning of "Directive n ° 2000/78 / EC of the Council of 27 November 2000 ”.
Consequently, it emerges from all of these elements that the "dismissal of the employee, pronounced on the grounds of her refusal to remove her Islamic headscarf when she was in contact with customers" is discriminatory!
4) Appraisal: No neutrality clause, no ban on the Islamic veil
This judgment confirms the previous resounding judgment of the Court of Cassation on the matter, namely that of November 22, 2017 (n ° 13-19.855). [[Cass., Soc., November 22, 2017, n ° 13-19855: https://www.courdecassation.fr/jurisprudence_2/chambre_sociale_576/2484_...
Indeed, after the CJEU itself ruled after having been seized by a preliminary question, the Court of Cassation had already set out such a solution in 2017.
She thus considered that "the prohibition made to the employee to wear the Islamic headscarf in her contacts with clients resulted only from an oral order given to an employee and targeting a specific religious symbol" it resulted "the existence of 'discrimination directly based on religious beliefs'.
And since by two points there is only one straight line, it emerges from these two judgments a certain jurisprudential consistency establishing the following rule: if no general neutrality clause, and reserved for employees in contact with customers, does not is planned beforehand, then the dismissal of the employee based on her refusal to remove her veil following the request of her superiors has a strong chance of being discriminatory, and therefore null.
To read also :
. Salariés, cadres : Do you speak droit de la religion au travail ? Salariés, cadres : do you speak droit de la religion au travail ? Par Frédéric Chhum, Avocat, et Justine Guilleminot, Juriste. (village-justice.com)
. La religion au travail en 10 questions / réponses religion-travail-salaries-questions-reponses-23506.pdf (legavox.fr)
Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
Claire CHARDES élève avocat EFB Paris M2 DPRT Paris Assas
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