In France, the issue of religious behavior in the workplace is extremely sensitive.
The principle under French employment law is that while public sector employers are required to enforce a policy of strict neutrality, in private sector companies, a balance must be maintained between the principle of secularism and the prohibition of discrimination based on religious beliefs.
On this basis, French employers can limit certain religious’ behavior in the workplace if :
- the prohibition is justified by the nature of the tasks to be performed by the employees,
- the prohibition responds to a determining and essential professional requirement, and
- the prohibition is proportionate to the goal to be achieved.
The El Khomri law dated 8 August 2016 has created a new principle under which employers can create restrictions on religious behavior in the company’s internal regulations (“règlement intérieur”), which is a specific document which must be established in all companies employing at least 20 employees, setting out the main rules regarding health and safety, discipline, discrimination and harassment.
To help companies, the French Labour Ministry has also recently published a guide in a Q&A format. This guide has the goal of defining the potential behavior and attitudes which could be considered as inappropriate and/or discriminatory so that employers avoid such situations.
But the subject of discrimination related to religion is never far off.
Recently the French Supreme Court, in a decision dated 1st February 2017, effected a fairly strict application of the prohibition of discrimination based on religion. This decision concerns employees who are required to take a public oath to be authorized to perform their duties (e.g. public notary, accounting experts, lawyers, or public inspectors).
In the relevant case, an employee, who was recruited to work for the public transportation service, refused to pronounce the words “I do swear” when taking the oath because of her Christian religion. Therefore, she suggested to replace the traditional formula by the sentence “I make the commitment/I undertake”. The tribunal refused her proposal and the company decided to dismiss her for serious misconduct as she could not be considered as a sworn public officer.
The Supreme Court ruled that this dismissal was discriminatory as it was based on the employee’s religious beliefs. Therefore, even though French law tries to soften the possibility for the employers to prevent employees from manifesting their religious beliefs, non-discrimination remains a constitutional principle which cannot be jeopardized.
However, it is important to note that the Supreme Court based its decision on the fact that the expression “I do swear” was not required in order for the duties to be performed by the employee at hand. Therefore, the solution might be different if a lawyer refused to take the oath with the traditional formula.