« The company rules and regulations may contain measures engraving the principle of neutrality and restraining the demonstration of employees’ convictions if those restrictions are justified by the exercise of other freedoms and fundamental laws or by the necessities of the proper functioning of business and if they are adjusted on the proportions of the purpose » _ Article L.1321-2-1 of the French Labour Code.
The key-measure of the 2016-1088 Law of August 8th, 2016 related to work, labour relations’ modernisation and careers’ securing -also known as the “El Khomri Law”- has just become strengthened and specified through two judgments of the European Court of Justice. On March 14th, 2017 the Court tacitly confirmed the compliance of the latest French legislation to the EU directive on equal treatment in employment and occupation.
The ECJ, dealing with two cases related to the wearing of an Islamic headscarf in workplaces, has recognized under strict conditions that employers could legitimately require the neutrality of their employees. Thus, the Court concluded that “the prohibition on wearing an Islamic headscarf, which arises from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, does not constitute direct discrimination based on religion or belief within the meaning of the directive.”
Yet, the European Court of Justice took good care of imposing safeguards, explaining in particular that:
- The prohibition based on the principle of neutrality shall not be bound to religion only but to all types of opinions. Thus, “such a prohibition may constitute indirect discrimination if it is established that the apparently neutral obligation it imposes results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage”.
- This prohibition must be enacted within the internal rules of the company and justified as such in terms of relevance and legitimacy as “a genuine and determining occupational requirement”.
- The consequences of the prohibition must be adapted to avoid the automatic dismissal of employees if a mere transfer is conceivable to “a post not involving any visual contact with those customers”.
The Court particularly emphasized on the possibility to engrave the principle of neutrality within the company, justified through the scope of business development.
As a reminder, the principles of secularity and neutrality conversely apply de facto to all French public firms (SNCF, La Poste, etc.).
See here the Press Release.
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