The religious question at work is a sensitive subject.
Today, the religious matters poses, multiple legal questions to French companies.
If it is necessary to respect the religious freedom of the employees at work, it may sometimes seem necessary to restrict their manifestations.
Employers and Human Resources managers may find themselves disarmed by the demands of certain employees regarding their religious practice.
I) Religion at work: Reconciliation between the freedoms of employees and the freedom of enterprise
In the field of religion at work, three main principles apply:
The principle of secularism (law of 3 December 1905, article 10 of the 1790 DDHC, article 1 of the 1958 Constitution, and article 9 of the European Convention for the Protection of Human Rights of 4 November 1950);
Freedom of religion (Article 9 of the 1950 European Convention for the Protection of Human Rights);
The principle of non-discrimination (preamble of the French 1958 Constitution and Article L. 1132-1 of the Labour Code).
In addition, three texts allow limitations on religious freedom at work.
First of all, Article L. 1121-1 of French Labour Code lays down the general rule concerning the possibility of restricting individual and collective freedoms in the workplace. However, these restrictions must be justified by the nature of the task to be performed and proportionate to the aim pursued.
Next, Article L. 1321-3 2° of French Labour Code provides for the possibility to includes restrictions on individual and collective freedoms in the rules of procedure, but always on condition that they are justified by the nature of the task to be done and proportionate to the aim pursued.
Lastly, the Law EL Khomeri of 8 August 2016 introduced Article L. 1321-2-1 to French Labour Code which states that "the rules of procedure may contain provisions inscribing the principle of neutrality and restricting the manifestation of convictions. Employees if these restrictions are justified by the exercise of other fundamental rights and freedoms or by the need for the proper functioning of the undertaking and if they are proportionate to the aim pursued ".
This article is therefore more precise and more restrictive than the two others mentioned above. It poses a double condition to provide for the principle of neutrality:
Justification of the restriction through the exercise of other fundamental rights and freedoms or due to the need for proper functioning in the company and;
Proportionality of the restriction to the goal sought.
II) 10 practical examples
For practical reasons the term "employee" in the masculine is used.
Question 1: Should an employee inform his employer of the reason for his request for leave, if he / she has religious reasons? In this case, is the employer obliged to grant him this leave?
No. An employee does not have to inform his employer of the reason for his request for leave.
However, if he specifies that the reason is religious, the employer is not obliged to grant him this leave.
However, the employer's response must be based on objective reasons unrelated to any discrimination.
Question 2: Does an employer have to give different meals to his employees because of specific requests related to religion?
No and yes. The employer has no obligation to grant this request.
Nevertheless, according to us, nothing forbids him to propose different dishes according to the religion of his employees.
Question 3: If one or more employees occupy a meeting room without permission to pray. Can the employer forbid them?
Yes. Meeting rooms are a dedicated area for work.
If the employee occupies this room without authorization, for whatever reason, the employer may ask him to leave the room.
Question 4: Can an employer organize an event in the company to celebrate Christmas?
Yes. Nothing forbids it.
On the other hand, the employer must be careful not to exclude certain employees. All employees must be invited, and everyone must be able to participate in this event if they wish without discrimination.
Question 5: Can an employer collect information about the religion of its employees? Mention this information in the management or evaluation tools of the personnel?
No. The employer can collect personal information about his employees only if they are necessary and relevant.
They can only aim to assess their professional abilities and must have a direct and necessary link with the evaluation of these skills.
Indeed, the religion of the employees can’t be considered as relevant or necessary information. Thus, it can’t be requested or recorded.
Question 6: Can an employer mention in a job offer whether or not one belongs to a religion?
To subordinate religious affiliation to a religion would be a discriminatory measure.
Question 7: Because of his religious beliefs, an employee refuses to perform certain tasks of his work or to work at certain times. Can his employer punish him?
Yes. The employer may sanctionned its employee, since the refusal to perform the tasks for which he was hired constitutes misconduct that may result in disciplinary action.
However, the task to be performed must not endanger the employee.
Thus, the Court of Cassation ruled that an employee refusing to take charge of a project to be held in the Middle East, given the risks that, because of his religious denomination, the realization of this project would run to his safety cannot be dismissed if the risk is real and he has informed his employer (Cass., 12 July 2010, n ° 08-45509).
Question 8: Can an employee refuse to submit to the compulsory medical examination because of his religious beliefs?
No. An employee cannot refuse to submit to the medical examination.
Indeed, it’s an obligation for all employees. This refusal constitutes a fault (Cass Labour, May 29, 1986, No. 85-45,409).
Question 9: Can an employer filter the company's internet access to prevent its employees from visiting sites related to religion?
Yes. Given that the provision of the Internet to employees is a working tool, which is the property of the employer, the latter can filter access to websites, which have no professional purpose.
Question 10: Can an employer prohibit an employee from praying at his place of work?
Yes and no. The employer cannot forbid an employee to pray at his place of work (in his office for example) during his break time, if this does not hinder the organization of work.
On the other hand, he may forbid prayers when they take place during working hours or disrupt the work of other employees. During the working hours, the employee is required to perform the work assigned to him by the employer.
Frédéric CHHUM, Avocats à la Cour (Paris et Nantes)
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. Nantes : 41, Quai de la Fosse 44000 Nantes - Tel: 02 28 44 26 44
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