France Update: The religious fact in business and the notion of essential and determining professional requirement

Case after case, the Court of Cassation continues the construction of its jurisprudence on the religious fact in companies initially (often) limited to the problem of the conspicuous wearing of a sign of belonging to a religion.

The difficulties are actually much more varied and the subject more and more recurrent.

Thus, if we stick to the figures of the Barometer of the religious fact in companies for the years 2020-2021:

• 66.5% of respondents encounter religious facts in their professional environment,
• managerial intervention is required in 54% of cases.

And if 70% of the behavior of practicing employees is perceived as not very disruptive and does not hinder the proper completion of the work, the reverse is not true for the remaining 30%.

This is the case with the facts that led to the judgment delivered by the Social Chamber of the Court of Cassation on 19 January (No. 20-14.014).

Employed as a team leader in a cleaning company, subject to a mobility clause, the employee will refuse a first time his transfer to a new site.

He refused a new transfer, first because of the imposed working hours and then, once these were modified by the employer, for religious reasons, his new assignment led him to work in a cemetery, which was forbidden to him by the Hindu religion.

After being notified of his disciplinary transfer to a third site, which he will refuse again, the employee will finally be dismissed.

By a judgment of 17 October 2019, the Paris Court of Appeal will annul the transfer sanction and by repercussion will pronounce the nullity of the dismissal on the grounds that it was up to the employer “to investigate whether, while taking into account the constraints inherent in the company and without the latter having to suffer an additional burden, it is possible for him to offer the employee a workstation compatible with the requirements of each of the parties, that the employer did not take this step even though he had a position likely to receive the employee’s assignment since he transferred him to it disciplinarily”..

The reasoning is defensible but was censured by the Court of Cassation which, after recalling that restrictions on religious freedom must be:

• justified by the nature of the task to be performed,
• proportionate to the aim pursued,
• meet a genuine and determining occupational requirement, objectively dictated by the nature or conditions of the pursuit of the professional activity in question,

consider that the transfer imposed on the employee fulfilled these different criteria taking into account the conditions for the exercise of the activity of the employee, team leader in the cleaning sector, who had been assigned to a site to perform his contractual tasks pursuant to a mobility clause legitimately implemented by the employer and that this was proportionate to the aim pursued since it allowed the maintenance of the employment relationship by assigning the employee at another cleaning site.

The Court of Cassation, therefore, adopts a very rigid position hereby limiting its assessment to the nature and conditions of exercise of the employee’s activity as well as to the proportionality of the measure taken, to the exclusion of all other considerations.

This is clearly a decision of principle which will guide the reading that the trial judges will have to have but which nevertheless questions the notion of fair performance of the employment contract implied in the judgment of the Paris Court of Appeal.

By Jean-Baptiste Vienne, France, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact france@transatlanticlaw.com

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