PART 1 of 2
Employers and employees seem to be increasingly confronted with the issue of religion in the workplace. Is it just a feeling or a reality?
The upsurge of religion in the workplace is an indisputable reality but its importance must be mitigated. Religion is not the subject of mass disputes and the incidence of such cases is still very minor (3% of all claims submitted to the “Defender of Rights” (“Défenseur des droits”) compared to 17% regarding health and welfare for example).
Is there a legal framework to regulate this phenomenon and, if so, is it sufficient?
There is an existing legal framework but it is difficult to adapt it to diverse situations and it cannot, in any case, resolve all disputes.
On an individual level, employees are protected by the recognition of religious freedom and the subsequent prohibition of any discrimination in this respect. This protection stems both from the national legal texts (Preamble of the French Constitution of 27 October 1946 and 4 October 1958, Articles L.1121-1 and L.1321-3 of the French Labor Code) and also from European regulations (European Convention for the Protection of Human Rights, EU Equal Treatment Directive 2000/78 of 27 November 2000) and international law (Universal Declaration of Human Rights, United Nations Convention and Covenant).
On a collective level, the employer is the guarantor of the proper organization of the company. The law grants the employer a “management authority” (“pouvoir de direction”), which may also become a disciplinary authority if it is necessary to end an objective disturbance to the proper functioning of the company.
This disciplinary authority is limited by the internal rules and procedures (“règlement intérieur”) provided for in Article L.1321-1 of the French Labor Code (the drafting of this document is legally circumscribed as it must be subject to the prior consultation of staff representatives and then submitted to the labor inspectorate).
Legally, there is a balance which is difficult to strike between, on the one hand, individual and religious freedom and, on the other hand, the collective management authority of the employer.
Where the employer’s decisions are devoid of subjective considerations (and any discrimination), the employer does not have to accede to religious demands relating to the organization of the working community for which the employer is responsible (medical examination according to the employee’s religious beliefs, adjustment of working hours or days off, collective catering, a prayer room, etc.).
However, if the employer accepts such a claim, the principle of non-discrimination would force the employer to accept similar claims for other employees.
Look for Part 2 of this article to be posted in the coming weeks, where we will address additional questions on this topic.