France

Articles in the Current Debates section concerning the religion in the workplace topic for France :

• April 2021 : The headscarf again

The 14 April 2021, the Court of Cassation confirmed (in the case of an employee dismissed for wearing a headscarf covering her hair, ears and neck) that an employer may only restrict the individual freedoms of their employees (in this case the freedom of religion) if this restriction is justified by the nature of the task to be performed and meets a professional requirement that is essential, decisive and proportionate to the aim sought.

• 27 November 2013 : the Paris Court of Appeal announces its decision in the Baby Loup case

In its judgment of 27 November 2013, the Paris Court of Appeal added a new dimension to what has become known as the “Baby Loup case” ; it all started with the dismissal from the crèche of a female employee who wore the Islamic veil. The crèche’s house rules specified that “the principle of freedom of conscience and religion of each member of staff cannot hinder respect for the principles of secularity and neutrality that apply in performing all the activities undertaken by Baby Loup, no matter whether on crèche premises or in its annexes or else in providing external support for children in the nursery” and the crèche used these rules to oppose the religious beliefs defended by its employee. In its judgment of 19 March 2013, the Court of Cassation had considered that “the principle of secularity established by Article 1 of the Constitution does not apply to employees of private companies who do not manage a public service”, which is the case of the Baby Loup nursery, a private law association. Thereafter, the provisions of the labour code apply, which provide that “No-one shall restrict persons’ rights and individual and collective liberties which would not be justified by the nature of the task at hand nor proportionate to the desired objective” (Article L. 1121-1). The general clause on secularity and neutrality featuring in the house rules of the Baby Loup association was thus judged to be invalid and the dismissal of the employee was declared null and void.

The Paris Court of Appeal confirmed the legality of the dismissal, yet following different reasoning. As such, it held that the crèche could be regarded as an “organisation with an ethos based on belief within the meaning of the case law of the European Court of Human Rights”, which would allow it to impose the neutrality obligation on its employees, just like an organisation with an ethos based on religion that can require that its employees adhere to a line of thinking defined by a religious doctrine. This idea of an organisation with an ethos based on religion or belief, absent from the labour code, is however defined in European Union law (Directive 2000/78 of 27 November 2000, which recognises in these organisations the “right to require from individuals working for them an attitude of good faith and loyalty to the ethics of the organisation”), as well as in French case law. In this case, this requirement of religious neutrality would be required to “respect and protect the wakening awareness of children”. An alternative approach to secularity is thus being put forward, having it change from a legal principle - which applies to public authorities in their relations with religious institutions and activities - to becoming a “conviction”.

For further information :
– CA Paris, 27 Nov. 2013, Madame Fatima L. / Association Baby Loup (in French)

• 15 October 2013 : the Observatory of Secularity adopts two opinions on the application of the principle of secularity

The first opinion adopted by the Observatory follows up on the debates generated by the Baby Loup judgment of 19 March 2013. The Court of Cassation (see article below) addressed “the definition and structuring of religion in organisations dedicated to welcoming children”.

The Observatory of Secularity notes that extending the principle of neutrality beyond the public sphere, public services and their agents would risk violating a fundamental right and thus be subject to condemnation by the European Court of Human Rights - or even censure by the Constitutional Council for interfering with the freedom of religion of private individuals engaging in private activity. Justifying this extension of the principle of neutrality to childcare organisations on the grounds of the “vulnerability” of the children also encounters the difficulty - even impossibility - of precisely defining the concept. The Observatory also recalls that “secularity is not an opinion or a belief, but a common value” and that the notion of “organisation with a secular ethos” cannot be used.

The Observatory suggested the Baby Loup crèche “modify its house rules to clarify the means for meeting the self-assigned objectives of equality of all children and parents and refusing any distinction - political or denominational - by implementing restrictions to freedom of religious expression that are justified by aims specific to its activity and proportionate to these objectives”. It could also opt for a plan to delegate the public service that would involve applying the principle of neutrality of public services to its agents.

More generally, the Observatory recommends that the French Government on the one hand enacts an inter-ministerial circular as a reminder of the law in force on the matter and, on the other, re-disseminates the Charter of Secularity in Public Services originally published on 13 April 2007 within the entire public administration.

In its second opinion, the Observatory of Secularity sets out a “reminder of the law” on the content and boundaries of the principle of secularity : the responsibility of public authorities in the promotion and application of this principle, what secularity guarantees and what it prohibits.

For further information :
– Opinion of the Observatory of Secularity on the definition and management of the religious in bodies that provide childcare (in French)
– Reminder of the law on secularity and religion (in French)

• 27 May 2013 : Survey on religion in companies

The Randstad Institute and the Observatory of Religion in Companies (OFRE) have presented the results of a survey on religion in companies conducted between September 2012 and March 2013 and involving 1,300 people (210 human resource executives in private companies, 481 local managers and 679 employees).

Very few cases of conflict

Less than a third (28%) of HR executives surveyed say that they have already faced issues related to religion in their company and only 6% of cases encountered led to deadlock or conflict. Nearly half of HR executives surveyed (41%) think nevertheless that this issue is going to become a problem in the near future.

A large majority (80%) of local managers say they do not feel particular unease on questions related to religious issues. However, they want to have managerial tools to understand these situations : margins for manoeuvre, knowledge of the rules, guidelines to understand the facts and requests etc.

Low impact of religious practice

Regarding the employees themselves, more than two thirds of respondents (68%) say they do not - or only partially - know about the religious practices of their colleagues. When this is the case, they consider either that this practice has no impact on work (75% of cases) or that it has a positive impact (20%), but rarely a negative impact (5%).

Legislative reform deemed not very useful

Following the judgment in the Baby Loup case rendered by the Court of Cassation, several French politicians have requested extending the principle of secularity to the private sphere and a proposal for a bill to this effect must be debated on 6 June at the National Assembly. The survey shows that respondents are rather sceptical about the need to legislate once more. Indeed, the usefulness of a law or a reform of the Labour Code is seen as the solution to improve things for only 12% of HR managers, 2% of managers and 16% of employees. 21% of HR executives, 45% of managers and 27% of employees believe that it would not very useful, 33% of HR executives, 30% of managers and 23% of employees even believe that it would be a damaging solution.

34% of respondents believe that the rule of secularity which applies in public services should apply to private companies. 36% believe that this is not necessary provided that the practice remains discreet and is regulated by the company and 30% feel that everyone is free to do as they please.

For more information, see the Randstad-OFRE press release and an article in the daily newspaper Libération.

• 19 March 2013 : Wearing the veil and principle of secularity

The Social Chamber of the Court of Cassation has detailed the boundaries of the principle of secularity in two cases where an employee was dismissed on the grounds that she was wearing an Islamic veil.

In the first case, involving a primary insurance fund, the Court of Cassation held, for the first time, that the principles of neutrality and secularity were applicable to all public services, including when these are undertaken by private law bodies, as in the case in point. Employees are here participating in a public service role and cannot therefore express their religious beliefs using external symbols, in particular clothing. The dismissal of the employee was therefore declared to be founded.

On the other hand, the second case involving the Baby Loup crèche relates to a private association which cannot be considered to be managing a public service. The Court of Cassation issued a reminder that the principle of secularity established by Article 1 of the Constitution does not apply to employees of this crèche. Therefore, this principle cannot be invoked to deprive these employees of the protection that the provisions of the Labour Code afford them. These provide that restrictions to religious freedom must be justified by the nature of the task to be accomplished, respond to an essential and crucial professional requirement and be proportionate to the desired objective. The general clause of secularity and neutrality featuring in the house rules of the Baby Loup association is thus judged to be invalid and the dismissal of the employee was declared null and void.

This decision aroused many reactions among political actors ; the government spokesman said that the principle of secularity “must not stop at the door of crèches” and that the government did not rule out legislating on the subject.

For further information (in French) :
– Cass. soc., 19 March 2013, no. 11-28.845, Baby Loup
– Cass. Soc., 19 March 2013, no. 12-11.690, Caisse primaire d’assurance maladie de Seine-Saint-Denis

• 10 April 2009 : HALDE legal opinion on religious expression in the workplace

On Friday, 10th April 2009, the HALDE (High Authority for the Struggle against Discrimination and for Equality) made public a legal opinion deliberated by its Council as well as the accompanying discussion, which covers all applicable provisions relating to religious expression in the workplace, whether derived from the Constitution, European law, labour or case law.

Read the legal opinion of the HALDE.