The religious fact in business and the notion of essential and determining professional requirement

Case after case, the Court of Cassation continues to build its case law on the religious fact in the company initially (often) limited to the problem of the conspicuous wearing of signs of belonging to a religion.

The difficulties are actually much more varied and the subject more and more recurrent.

Thus, if we stick to the figures of the Barometer of religious fact in business for the years 2020-2021: 

• 66,5% of respondents encounter religious facts in their professional environment, 
• managerial intervention is necessary in 54% of cases.

And if 70% of the behaviors of observant employees are perceived as not very disruptive and do not interfere with the proper performance of the work, the reverse is not true for the remaining 30%.

This is the case with the facts that led to the judgment rendered by the social chamber of the Court of Cassation on January 19 (No. 20-14.014).

Employed as a team leader in a cleaning company, subject to a mobility clause, the employee will refuse his transfer to a new site for the first time.

He will refuse a new transfer, first because of the imposed working hours then, once these have been modified by the employer, for religious reasons, his new assignment leading him to work in a cemetery, which was prohibited by the Hindu religion.

After being notified of his disciplinary transfer to a third site, a transfer which he again refused, the employee was finally dismissed.

By a judgment of October 17, 2019, the Paris Court of Appeal will cancel the transfer sanction and consequently will declare the dismissal null and void on the grounds that it belonged to the employer "to find out whether, while taking into account the constraints inherent in the company and without the latter having to undergo an additional burden, it is possible for it to offer the employee a workstation compatible with the requirements of each of the parties, that the employer did not take this step when he had a position likely to receive the employee's assignment since he transferred him there disciplinary ".

The reasoning is defensible but was censured by the Court of Cassation which, after recalling that restrictions on religious freedom must be : 

• justified by the nature of the task to be performed, 
• proportionate to the aim sought, 
• meet an essential and determining professional requirement, objectively dictated by the nature or the conditions of exercise of the professional activity in question,

will consider that the transfer sanction imposed on the employee met these various criteria taking into account the conditions of exercise of the activity of the employee, team leader in the cleaning sector, who had been assigned to a site to perform his contractual tasks pursuant to a mobility clause legitimately implemented by the employer and that it was proportionate to the aim sought since it allowed the maintenance of the employment relationship by assigning the employee to another cleaning site. 

The Court of Cassation therefore adopts a very rigid position here by limiting its assessment to the nature and conditions of exercise of the employee's activity as well as to the proportionality of the measure taken., to the exclusion of all other considerations.

This is obviously a decision of principle which will guide the reading that the trial judges will have to have but which nevertheless questions the notion of fair performance of the employment contract implied in the judgment of the Paris Court of Appeal.