66% of employees notice religious facts in their work environment but only 45% of managers believe they have satisfactory knowledge of the legal rules and company guidelines on the subject (Institut Montaigne, barometer of religious facts in business 2022 -2023). A certain ignorance among managers forces them to position themselves between “it is forbidden to…” and “do as you wish”. Thus, in the public sector (or public service delegations) it is prohibited to wear religious clothing at work or to adorn oneself with a visible religious object. The principle of secularism and the obligation of neutrality apply. In the private sector, on the contrary, the company “cannot prohibit employees from practicing their religion in a general and absolute manner”, recalls the Montaigne Institute. “Religious freedom is a fundamental freedom enshrined in the Constitution of 1958 and by the European Convention for the Protection of Human Rights (article 9)”, explains Olivia Guilhot, associate lawyer at the Voltaire firm. “In the private sector, respect for individual freedoms prevails. Wearing a religious symbol (kippah, veil, cross) is therefore authorized,” continues Lucy de Noblet, director of the InAgora firm, consulting and training on the management of secularism and religion.
Religious freedom presupposes that employees can freely express their beliefs and therefore wear conspicuous signs. The employer can never take religion into account in a decision to dismiss or refuse to hire: it is a prohibited discriminatory reason – such as sex or political opinion (art.1132-1 of the Labor Code). “A dismissal based on the refusal by an employee to remove a religious sign is void, explains Me Guilhot. Unless there are objective justifications such as, for example, reasons of hygiene and safety which require the wearing of clothing incompatible with a religious sign (helmet, sterile outfit).” Thus, in catering, the obligation to wear short sleeves restricts the religious freedom of people who wish to cover their arms.
Neutrality in the internal regulations
Nor can an employer prohibit religious clothing on the grounds that it would pose a problem to the image of his company. The dismissal of an employee who refuses to remove her veil when in contact with customers is deemed discriminatory in the absence of a neutrality clause in the internal regulations (Camaïeu judgment, 2021). “The alleged expectations of customers regarding the physical appearance of a saleswoman is not a justification accepted by the Court of Cassation,” underlines Me Guilhot. According to Lucy de Noblet, “if companies wish to limit religious clothing or symbols, they can put in place a neutrality clause which must appear in the internal regulations. But this clause is limited to contact with customers. A person who works accounting, for example, is not subject to it.” The employer can, however, sanction abuse and proselytism. “But outside working hours, during the lunch break or at the coffee machine, there is almost total freedom of expression. However, this cannot turn into pressure. If employees complain to the manager , he is in his role by checking the facts and asking the person behind this pressure to stop,” adds the expert. “The employer can sanction abusive behavior, but be careful: it is not the expression of a religious belief that is sanctioned but the consequences of the employee’s attitude which created trouble in the company”, analyzes Olivia Guilhot.
Complicated ? Managers sometimes feel uneasy about religion. The Montaigne Institute notes that “more and more respondents consider that the question of religion should be discussed with a visibly practicing candidate when hiring and that the company should avoid recruiting visibly practicing employees.” Illegal. “They have to manage a situation as managers, and not as theologians!” replies Lucy de Noblet. Grant leave for a religious holiday? “The manager does not have to take into account the reason for the leave, he sees if it is possible with the organization of the service. Dialogue, being fair without discriminating or sanctioning, is the best solution,” concludes -She.