Cour de Cassation
National case details
Registration ID: 13-19.855
Instance: Cassation (review)
Case status: Final
Area of law
Preliminary rulingJudgement of the CJEU (Grand Chamber), 14 March 2017, Case C-188/15 Asma Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole SA
9 April 2015
Request for a Preliminary Ruling
14 March 2017
22 November 2017
National Follow-up Judgment
Identification of the case
- Freedom of thought, conscience and religion (art. 10 CFREU)
- Articles L. 1121-1, L. 1132-1 in its applicable wording L. 1133-1, L. 1321-3, 2° of the French Labour code
- Articles 2(2) and 4(1) of the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation
Summary of the case
A design engineer employee was regularly required to provide services to clients of her company. One of its clients indicated that the wearing of the Islamic headscarf had inconvenienced a number of collaborators and he wished that this would not happen again. The employer then asked the employee to respect the principle of customer neutrality and enjoined her to take off her Islamic headscarf. Following her refusal, she was dismissed for serious misconduct. The employee contested her dismissal as constituting a discriminatory measure because of her religious beliefs.
- Civil judicial enforcement
Annulment of a dismissal decision.
The request for a preliminary ruling (Court of cassation, social chamber, 9 April 2015, No. 13-19.855) concerned the interpretation of Article 4(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. The referring court asked, in essence, whether Article 4(1) of Directive 2000/78 must be interpreted as meaning that the willingness of an employer to take account of the wishes of a customer no longer to have that employer’s services provided by a worker wearing an Islamic headscarf constituted a genuine and determining occupational requirement within the meaning of that provision.
The Court of Cassation (Court of cassation, social chamber, 22 November 2017, No. 13-19.855) draws the consequences of the two judgments of the CJEU on 14 March 2017 (CJEU, 14 March 2017, C-157/15, G4S Secure Solutions and CJEU, 14 March 2017, C-188/15, Asma Bougnaoui) who state that : an internal rule of an undertaking which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination. However, in the absence of such a rule, the willingness of an employer to take account of the wishes of a customer no longer to have the employer’s services provided by a worker wearing an Islamic headscarf cannot be considered an occupational requirement that could rule out discrimination within the meaning of Article 4(1) of the Directive of 27 November 2000.
In its judgement the Court states that restrictions on religious freedom must be justified by the nature of the task to be performed, meet an essential and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate within the meaning of articles L. 1121-1, L. 1321-3 and L. 1132-1 of the Labour Code, Articles 9 and 14 of the European Convention on Human Rights and Article 18 of the International Pact on Civil and Political Rights.
The Court adds that the wearing of the Islamic headscarf by the employee of a private company, in contact with customers, does not infringe the rights or beliefs of others with regard to the said articles. The discomfort or sensitivity of the customers of a commercial company allegedly felt solely at the sight of a sign of religious affiliation does not constitute an operative or legitimate criterion, foreigner to any discrimination, justifying the precedence of economic or commercial interests over the fundamental freedom of the employee.
The Court concludes that the prohibition on wearing the Islamic headscarf in a private commercial enterprise, even if limited to customer contact, taken on this ground alone, constitutes an unjustified and disproportionate infringement of religious freedom.
In its judgement (Court of cassation, Social chamber, 22 November 2017, No. 13-19.855), the Court specifies that the employer, invested with the task of ensuring that all the fundamental rights and freedoms of each employee are respected within the working community, may provide in the internal regulations or in a memorandum subject to the same provisions as the internal regulations, for a neutrality clause prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, provided that this general and undifferentiated clause is applied only to employees who are in contact with customers. When an employee refuses to comply with such a clause in the exercise of her professional activities with the company's clients, it is up to the employer to investigate whether, while taking into account the constraints inherent in the company and without the latter having to bear an additional burden, it is possible for the employer to offer the employee a position that does not involve visual contact with these clients rather than dismissing her.
The Court of Cassation finally ruled on the dismissal of the employee. It noted that no neutrality clause was provided for in the company's internal regulations or in a memorandum and that the prohibition on the employee from wearing the Islamic headscarf in her contacts with clients resulted only from an oral order given to the employee concerned and aimed at a specific religious sign, which resulted in the existence of discrimination directly based on religious beliefs.
Elements of judicial dialogue
- Direct dialogue between CJEU and National court (preliminary reference)
- CJEU C-157/15, Achbita
- CJEU C-188/15, Bougnaoui