On April 14th, 2021 (n ° 19-24079), that is to say four years after its last resounding judgment on the subject, the Court of Cassation again took a position on the discriminatory nature of the dismissal pronounced because of the refusal by an employee to withdraw its veil in the workplace [[Cass., Soc., April 14th, 2021, n ° 19-24079: https://www.courdecassation.fr/jurisprudence_2/chambre_sociale_576/479_14_46873.htm
3) The solution unveiled by the Court of Cassation
3.1) The need for a general internal rule
The Court of Cassation begins by recalling the principles applicable to restrictions on religious freedom.
Indeed, for the latter to be applied, they must be "justified by the nature of the task to be performed, meet an essential and decisive professional requirement and proportionate to the goal sought".
Article L. 1321-5 of the Labor Code provides that a “political, philosophical and religious” neutrality clause may be inserted in the internal regulations, provided that it is “general” and that it is not applied “only to employees who are in contact with customers”.
Once these principles are recalled, the judges of the High Court rule precisely on the case of the absence of a neutrality clause.
And for good reason, in the absence of a general clause, the prohibition, formulated orally to the employee and specifically directed against the wearing of the veil, necessarily constitutes direct discrimination "based on the religious convictions of the person concerned".
However, expressly targeting one religion in relation to others constitutes direct discrimination, which is obviously prohibited.
Nevertheless, an express rule of general application, covering all beliefs, whether religious, political or philosophical, may help to ground the request for the removal of the veil.
3.2) Insufficient commercial image as a professional and decisive requirement
In addition, the Court of Cassation holds that the employer "explicitly placed itself in the field of the image of the company with regard to the infringement of its commercial policy", likely "to be upset to the prejudice of the company by wearing the Islamic headscarf by one of its saleswomen ”.
However, "the alleged expectation of customers on the physical appearance of saleswomen in a clothing retail trade" is not an "essential and decisive professional requirement", within the meaning of "Directive n ° 2000/78 / EC of the Council of 27 November 2000 ”.
Consequently, it emerges from all of these elements that the "dismissal of the employee, pronounced on the grounds of her refusal to remove her Islamic headscarf when she was in contact with customers" is discriminatory!
4) Appraisal: No neutrality clause, no ban on the Islamic veil
This judgment confirms the previous resounding judgment of the Court of Cassation on the matter, namely that of November 22, 2017 (n ° 13-19.855). [[Cass., Soc., November 22, 2017, n ° 13-19855: https://www.courdecassation.fr/jurisprudence_2/chambre_sociale_576/2484_22_38073.html]]
Indeed, after the CJEU itself ruled after having been seized by a preliminary question, the Court of Cassation had already set out such a solution in 2017.
She thus considered that "the prohibition made to the employee to wear the Islamic headscarf in her contacts with clients resulted only from an oral order given to an employee and targeting a specific religious symbol" it resulted "the existence of 'discrimination directly based on religious beliefs'.
And since by two points there is only one straight line, it emerges from these two judgments a certain jurisprudential consistency establishing the following rule: if no general neutrality clause, and reserved for employees in contact with customers, does not is planned beforehand, then the dismissal of the employee based on her refusal to remove her veil following the request of her superiors has a strong chance of being discriminatory, and therefore null.
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To read also :
. Salariés, cadres : Do you speak droit de la religion au travail ? Salariés, cadres : do you speak droit de la religion au travail ? Par Frédéric Chhum, Avocat, et Justine Guilleminot, Juriste. (village-justice.com)
. La religion au travail en 10 questions / réponses religion-travail-salaries-questions-reponses-23506.pdf (legavox.fr)
Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
Claire CHARDES élève avocat EFB Paris M2 DPRT Paris Assas
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