On 14 March 2017, the European Court of Justice (ECJ) rendered an opinion in two cases, one Belgian and the other French, whereby a company wishing to adopt a policy of neutrality towards its clients has the right to ban the wearing of religious symbols in the workplace.
An internal rule within the company can ban the visible wearing of religious, political and philosophical symbols, insofar as it treats all employees of the company in the same manner notably by requiring them, generally and without any differentiation, to dress neutrally. It does not represent any direct or indirect discrimination, as long as the obligation does not result in the creation of a specific disadvantage of employees adhering to a religion or specific beliefs. The rule thus complies with EU Directive Nr. 2000/78/EC establishing a general framework for promoting equal treatment in the workplace and with the European Convention of Human Rights.
First of all, the employer is entitled to set the internal rules regulating the issue, providing for a general and indiscriminate prohibition of the wearing of religious symbols requiring them to dress neutrally.
The decision of the ECJ also validates a provision of the French “El Khomri” law which allows for the insertion of a specific clause in the internal rules.
It is therefore not really surprising that France, as a European secular country, welcomes such a decision while the reaction is a bit more complex in countries where religion has a constitutional place (such as Germany) or takes the form of state religion (Greece, Ireland ….).
Generally speaking, European employers appreciate the clarification given by the ECJ on an ultra-sensitive issue. French companies which are part of an international group will most certainly have to use skill in conveying the message to their headquarters if it is located in a country where restrictions on the freedom of expression appear to be harsh.
They must then revise their internal rules respecting the procedure of information / consultation of the Works Council and disclosure to the Labour Inspectorate. The employer must ensure that the restrictive provisions are objectively justified by the nature of the task to be accomplished and proportionate to the objective pursued. Thus, grounds of health and safety may justify the restrictions, but also the contact by the employee in question with the clients. If the restrictive rule is permitted in principle, it must also meet the requirements of necessity and proportionality. In the absence of clear rules providing for sanctions in cases of non-compliance, questions will arise with respect to recalcitrant employee. In those cases, disciplinary sanctions may be difficult to implement and a dismissal void of real and serious grounds and, therefore, potentially discriminatory.
Companies thus have a difficult task facing them. If they can take inspiration from the employers’ guide to religion and belief in the workplace, (though it has no legislative force) published by the French Government in Autumn 2016, they must formulate their internal rules by ensuring the coherence of the provisions with other rules governing the workers’ community, such as Codes of Ethics, Codes of Conduct, Codes of Diversity…….
Meanwhile we await a law that precisely specifies the conditions of the restrictions on freedom of expression.