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DOI: 10.5553/EELC/187791072022007002003

European Employment Law CasesAccess_open

Case Reports

2022/13 Transfer of employee and direct discrimination on ground of religious beliefs (FR)

Keywords Religious Discrimination
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Claire Toumieux and Susan Ekrami, "2022/13 Transfer of employee and direct discrimination on ground of religious beliefs (FR)", European Employment Law Cases, 2, (2022):78-81

    The French Supreme Court has held that an employer was not guilty of direct discrimination on the ground of religious beliefs by imposing on an employee of Hindu faith a disciplinary transfer to a new working site, when such transfer was justified by an essential and determining professional requirement.

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    • Summary

      The French Supreme Court has held that an employer was not guilty of direct discrimination on the ground of religious beliefs by imposing on an employee of Hindu faith a disciplinary transfer to a new working site, when such transfer was justified by an essential and determining professional requirement.

    • Facts

      An employee working as a manager in a cleaning company (the ‘Company’) was transferred, in compliance with his mobility clause, to a different working site (‘site A’), which he refused. He was then transferred to a cemetery site (‘site B’), again located within the scope of his mobility clause, which he also declined on the ground that his working hours were incompatible with his other professional obligations. Although the Company adjusted his working hours, the employee invoked this time his Hindu religious convictions prohibiting him from working in a cemetery. Faced with the employee’s constant refusal to change his workplace, the Company notified him of a disciplinary transfer to a third site (‘site C’). After several formal notices to work on site C, which remained unanswered by the employee, the Company terminated his employment contract. Invoking discrimination based on his religious beliefs, the employee brought a legal action against the Company in order to obtain the nullity of his disciplinary transfer and his ensuing dismissal.

    • Judgment

      The Court of Appeals of Paris upheld his claim by holding that the facts suggesting discrimination were established, since the employee was transferred on disciplinary grounds for having refused to transfer to site B to which he was assigned whereby his refusal was justified by his religious beliefs. The Court of Appeals deduced that the Company had failed to demonstrate that the sanction imposed on the employee was unrelated to any discrimination considering that the Company could have assigned the employee in the first place to a site that was compatible with his religious beliefs. The Court of Appeals hence cancelled the employee’s disciplinary sanction, entailing the cancellation of his subsequent dismissal.
      The French Supreme Court on the contrary dismissed the Court of Appeals’ decision by making the following ruling:

      While the disciplinary transfer ordered by the employer was justified by an essential and determining professional requirement, within the meaning of Article 4, § 1, of the EU Directive 2000/78 dated 27 November 2000, with regard to, on the one hand, the nature and exercise [of] conditions of the activity of the employee, [a] manager in the cleaning sector, assigned to a site to perform his contractual tasks by virtue of a mobility clause legitimately implemented by the employer, on the other hand proportionate to the desired aim of the measure, which allowed to keep the employment relationship by the assignment of the employee to another cleaning site, from which [the Court of Appeals] should have deduced that the disciplinary transfer did not constitute an unjustified direct discrimination on the grounds of religious beliefs and therefore the dismissal of the employee was not null and void.

    • Commentary

      Confronted with situations where employees invoke their religious beliefs to refuse certain tasks that fall within the scope of their employment contracts, the European Court of Human Rights (the ‘ECHR’) seems to lean towards the contractual obligation of the employees. For instance, the ECHR validated the dismissal of an employee employed in the United Kingdom as a civil registrar who refused, in the name of her religion, to perform civil partnership ceremonies for homosexual couples (ECHR, 15 January 2013, No. 51671/10). Similarly, still in the United Kingdom, for a marriage counsellor who refused counselling homosexual couples because of his religious beliefs (ECHR, 15 January 2013, No. 36516/10).
      The Court of Justice of the European Union (the ‘CJEU’) focuses for its part on the application of EU Directive 2000/78/EC1xThis EU Directive has been transposed into French law under Articles L.1121-1, L.1132-1 and L.1133-1 of the French Labour Code. which states that “restrictions on freedom of religion must be justified by the nature of the work to be performed, meet an essential and determining professional requirement and must be proportionate to the aim sought”. The CJEU considers that this notion refers to “a requirement objectively dictated by the nature or the exercise [of] [conditions of the professional activity in question” (CJEU, 14 March 2017, Case C-188/15).
      In the case at hand, it appears that the Supreme Court has drawn its conclusion from the case law of both these two Courts.
      The Supreme Court concluded that the disciplinary transfer ordered by the Company against the employee did not constitute a direct discrimination on the ground of religious beliefs for two reasons:

      • On the one hand, by its nature and the exercise of conditions of the employee’s activity, the employee was assigned to a site to carry out his contractual tasks by virtue of a mobility clause validly provided for in his employment contract.

      • On the other hand, because of its proportionate nature with respect to the aim sought, the Company’s objective was to keep the working relationship by assigning the employee to another working site.

      In light of this ruling, one could assume that when it comes to restrictions on freedom of religion, in the eyes of the Supreme Court as long as the employee is asked to carry out his contractual duties the condition of ‘essential and determining professional requirement’ is met. As to the proportionate nature of the restriction, it seems that the Supreme Court was not insensitive to the Company’s efforts to avoid as much as possible the employee’s termination and was setting an implicit obligation for the employer to make its best efforts to redeploy the employee before making any termination decision. Indeed, the Supreme Court clearly ruled that the sanction was proportionate to the aim sought because it “allowed to keep the employment relationship”, which suggests that the solution would have been different if the employee had been directly dismissed.
      This redeployment obligation was invoked expressly by the Supreme Court in a 2017 case (Cass. Soc., 22 November 2017, No. 13-19855) pertaining to the Islamic headscarf in the workplace where the Court recognised the validity of a neutrality clause in the company’s internal regulations prohibiting workers who were in contact with customers from wearing any visible sign of political, philosophical or religious sign in the workplace. The Supreme Court expressly held that:

      In case of an employee’s refusal to comply with such a [neutrality] clause, the employer must determine whether, while taking into account the inherent constraints to the company and without the latter having to bear an additional burden, it is possible to offer to the employee a role that does not involve face-to-face contact with the customers, rather than dismissing the employee.

      It also seems that the Supreme Court is parting with its previous case law in the famous ‘Butcher of Mayotte’ case (Cass. Soc., 24 March 1998, No. 95-44.738). In that case, the employee’s contractual obligations had taken precedence over his religious beliefs. The case concerned a Muslim employee who was hired in a retail food store and who was subsequently assigned to the butchery section as a butcher, where he could come into contact with pork meat. Faced with the employer’s refusal to change his assignment, the employee had brought a constructive dismissal claim against his employer. However, his claim was dismissed by the Supreme Court which held:

      Even though it is true that the employer is required to respect the religious beliefs of his employee, except where expressly provided [in the employment contract], his religious beliefs do not interfere with the scope of the employment contract and the employer does not commit any fault by asking the employee to perform the task for which he was hired […].

      The main takeaway of the present court decision is that in order to rule out the discriminatory nature of a given measure based on the employee’s religious beliefs, the Supreme Court would verify the employer’s attempt to strike a balance between the employee’s religious beliefs and his contractual obligations by looking for an alternative role instead of terminating the employee. But what happens if no such alternative role is available or the employee refuses to accept such role, would the employee’s dismissal still be discriminatory? Probably not, but one could assume that the termination should not be on disciplinary grounds but rather due to the disruption caused in the company’s organisation by the employee’s refusal to carry out his contractual duties. The Supreme Court will yet have to decide on the validity of such termination grounds …

    • Comments from other jurisdictions

      Austria (Dr. Thomas Dullinger, University of Vienna): The conflict between the employee’s contractual obligation on the one side and moral conflicts or religious obligations on the other side has long been discussed in Austrian literature but has hardly been an issue for the courts. However, recently the Austrian Supreme Court had to deal for the first time with the refusal of an employee to provide their services on religious grounds (Oberster Gerichtshof 14 September 2021, 8 ObA 59/20i). This decision also involved an employee who was transferred within his mobility clause and objected that his religion prohibited him from handling certain foods, which would have been part of his new position. Due to this refusal, the employment relationship was terminated by the employer. In contrast to the French courts, the Supreme Court did not recognise any potential direct discrimination on the basis of religion in this action, but only potential indirect discrimination. In addition, the Supreme Court referred to the constitutionally guaranteed protection of conscience, which influences the interpretation of the employer’s duty of care and obliges the employer to take into account the religious interests of employees. Following the German jurisprudence and literature, such moral conflicts are primarily considered from this perspective in the Austrian literature.
      As part of the examination of justification, the Supreme Court asked whether it would have been reasonably possible for the employer to transfer the employee to another position instead of terminating the employment relationship. Whether such employment would have been possible in the specific case without additional burden on the employer was still unclear, which is why the Supreme Court referred the case back to the lower courts.
      Therefore, it is not yet possible to estimate how the Supreme Court will strike a balance between the employee’s contractual obligation and their religious needs or moral conflicts in future cases. In any case, there is no unconditional priority of the contractual obligation under Austrian law. It should also be mentioned that short-term absences for religious reasons (such as attending an important festivity or a funeral) that do not regularly occur (such as religious holidays) do not cause any significant problems under Austrian law. These are qualified as an important reason affecting the person of the employee, which leads to time off with continued payment of remuneration (Oberster Gerichtshof 25 April 1996, 8 ObA 2058/96x; 13 February 2003, 8 ObA 6/03w).

      Germany (Pia Schweers, Luther Rechtsanwaltsgesellschaft mbH): Since German anti-discrimination law is also based on EU Directive 2000/78/EC, many parallels can be seen with regard to the French legal situation. According to the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, ‘AGG’), discrimination on the grounds of religion is inadmissible.
      As in France, there are also legal disputes in Germany, particularly on the question of the lawfulness of a prohibition to wear an Islamic headscarf in the workplace. Most recently, the Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) asked the ECJ for a preliminary ruling in a case in which a cashier wore a headscarf and the company subsequently issued a prohibition on wearing conspicuous large-scale signs of religious, political and other ideological convictions at the workplace because it wanted to show neutrality towards customers. The ECJ has ruled that such a prohibition can be permissible if it affects all employees and all religions without distinction. However, the ECJ also stated that the member states have a margin of interpretation in the question of whether, in a specific individual case, the employer’s freedom of business or the employee’s freedom of religion enjoys greater protection. In the past, German case law has been critical of headscarf prohibitions. For this reason, the follow-up decision of the ECJ ruling would have been interesting. However, as the parties to the underlying legal dispute reached a settlement, the BAG did not have to rule on the subject matter.
      With regard to the French ruling on the question of discrimination on the grounds of religion in the case of transfer, it should be noted that a similar decision could have been expected in Germany. Under German labour law, the employer must also take into account the legitimate interests of the employee. An attempt should therefore first have been made to offer the employee a workplace that would meet their individual requirements. However, if the employment contract contains a permissible transfer clause and the employee continuously refuses to fulfil their contractual obligations, a dismissal would also be conceivable in Germany.

      The Netherlands (Peter Vas Nunes): Dutch courts do not often apply Article 4 of Directive 2000/78, which they interpret restrictively. Yet this provision can come in handy, as this judgment goes to show. Let me illustrate this with two examples.
      Scenario 1: a cleaning company has contracted cleaning work on two similar sites: site A and site B. The company loses the contract for site A. There is a vacancy on site B. It transfers an employee, who until now worked at site A, and who has a ‘mobility clause’, to site B. The employee refuses on legitimate religious grounds and is then dismissed because there is no work for them.
      Scenario 2: the company has three sites: A, B and C. Following the loss of the contract for site A, it has identical vacancies at sites B and C. Despite knowing that the employee, on grounds of belief, cannot work at site B, the company transfers them to that site anyway, even though, from a business perspective, it might just as well have transferred the employee to site C, where there is no religious impediment. The employee refuses to go to site B, requesting a transfer to site C. The employer denies the request and dismisses the employee.
      The dismissal in scenario 2 clearly constitutes direct discrimination. Condemning this employer is eminently reasonable. How about scenario 1? The employee in that case is dismissed, not because of their belief, but because they are redundant. However, their redundancy is so closely linked to their belief that a court might find direct – and therefore not justifiable – discrimination. The Paris Court of Appeal in this case report seems to have taken a similar approach, cancelling the dismissal.2xThe facts in my scenario 1 differ from the facts in the reported case, where the employer imposed a disciplinary sanction. This outcome could be seen as less than reasonable, given that there was not much else the employer could have done. The only way out I can think of is to apply the ‘essential and determining requirement’ exception (in Directive 2000/78: Article 4(1). This is what the Supreme Court did in this case.

      Subject: Religious Discrimination, Disciplinary Transfer
      Parties: Employee – v – société Derichebourg propreté
      Court: Cour de cassation, chambre sociale (French Supreme Court, labour law domain)
      Date: 19 January 2022
      Case number: 20-14.014
      Internet publication: https://www.legifrance.gouv.fr/juri/id/JURITEXT000045067718?page=1&pageSize=10&query=20-14.014&searchField=ALL&searchType=ALL&sortValue=DATE_DESC&tab_selection=juri&typePagination=DEFAULT.

    Noten

    • 1 This EU Directive has been transposed into French law under Articles L.1121-1, L.1132-1 and L.1133-1 of the French Labour Code.

    • 2 The facts in my scenario 1 differ from the facts in the reported case, where the employer imposed a disciplinary sanction.


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