Employment law: Combining freedom of thought and secularism

The European Convention on Human Rights provides that everyone has the right of freedom of thought, conscience, religion and the right of freedom of expression (art 9 and 10).

However, in the workplace, the right to express one’s religious beliefs or political beliefs is not absolute and can be restricted.

The French Constitution provides for the principle of secularism and thus, a strict neutrality in this respect in public services (art 1). This constitutional rule is justified by the fact that the state and the government have to remain absolutely secular and neutral.

On such grounds, public agents are prohibited to wear any outfit or sign with religious connotation. This principle is applicable to all employees of public services and by extension, to employees of private companies operating a public service.

On the opposite, employees of private companies who do not provide a public service are free to express their religious belief, including to wear religious symbol in the workplace. Moreover, any distinction by the employer between employees because of their religious beliefs is a discrimination prohibited by the Labor Code (Article L1132-1).

There is however one exception (L1121-1 Labor Code) : the employer may restrict, through the company’s Internal Regulations, the rights and religious freedom of the employee if these restrictions are justified by the nature of the employee’s tasks or activity and if they are proportionate, specific and not too general.

Hence, the wearing of Islamic headscarves may be prohibited if justified for reasons such as the need to have contacts with clients or customers or for security or sanitary reasons.

The issue of Islamic headscarf and veil is very sensitive in France and is the cause of regular cases the most iconic is the « Baby Loup » case, a judicial battle that lasted 6 years.

“Baby Loup” is a private children nursery. In 2008 one of its employees was dismissed because she refused to remove her Islamic veil while the Internal Regulations required from the staff a general duty of secularism and neutrality. The employee claimed towards the Labor Court the cancellation of the dismissal.

Both Labor Court and Court of Appeal ruled that the dismissal was valid because a nursery is considered as a public service which, under the French Constitution, must comply with the general principle of secularism and neutrality. In that case, employees may be prohibited to wear any religious outfits.

While the employee appealed to the Supreme Court and after various procedural episodes, the plenary session of the Supreme Court followed the Court of appeal and approved the dismissal for serious misconduct considering that the restriction to employee’s freedom to express their religious belief is in that case justified by the fact that the employee was in contact with children and their parents.

In view of strengthening the principle of secularism and neutrality in France, the parliament and the government have recently enacted two significant devices :

– An amendment of the Labor Code to make easier for the employer to limit through the Internal Regulations, the employees’ right to express their religious beliefs (August 2016).

– A guide book prepared by the Government to help companies to cope with religious issues and to encourage them to force employees to a greater neutrality (November 2016).

The line between freedom of expression and thought, and secularism at the workplace remains nevertheless a sensitive issue.