French Court of Cassation rules that a company’s image is not an acceptable justification for a difference in treatment in staff
French Court of Cassation rules that a company’s image is not an acceptable justification for a difference in treatment in staff
The French Court of Cassation – the highest court in the French judiciary – has recently laid down an important ruling in a case involving unfair dismissal on the ground of discrimination; it ruled that a company’s image is not an acceptable justification for a difference in treatment in staff.
The case was taken by a saleswoman who worked in a retail store. Upon returning to employment following parental leave, she was dismissed instantly for refusing to remove her headscarf after being asked to do so by her employer. The employer said the dismissal was justified for real and serious reasons, citing damage to the company’s brand image and commercial policy, based on the presumed expectations of its customers. It was the saleswoman’s contention that was a victim of discrimination on the grounds of her religious beliefs therefore she sought legal action.
The ‘Micropole’ judgement (C-157/15, ‘G4S’ and C-188/15 Micropole) from 14 March 2017 influenced the Court of Cassation’s decision-making. Since the judgement, employers can insert a neutrality clause into internal regulations (or in a memorandum subject to the same regime) prohibiting the visible wearing of any political, philosophical or religious sign in the workplace.
However, a clause will only be valid if it:
- Applies in a general and undifferentiated manner;
- Is justified by the exercise of other fundamental rights and freedoms or by the needs of the smooth running of the company;
- Is proportionate to the aim sought.
In the present case, there was no such clause therefore the employer had no basis to treat the saleswoman differently.
The employer’s predominant argument justifying the different in treatment was that there was a ‘necessary and decisive professional requirement’ linked to the company’s brand image: that is the fact that they sold women’s clothing.
According to the Labour Code, what constitutes a necessary and decisive professional requirement is defined objectively and it must pursue a legitimate aim, be proportionate and be dictated by the nature or conditions of the professional activity. The Court of Cassation did not agree with the employer that the company’s brand image was sufficient to justify a different in treatment of the saleswoman.
Moreover, the Court of Cassation outlined that the argument posed by the employer that their customers have certain expectations of their staff’s appearance and the sight of the headscarf will diminish their views of the store; such as an argument was already rejected as grounds for dismissal in the Micropole judgement on the basis that they were subjective consideration as opposed to objective professional requirements.
The Court of Cassation ruled that there was no need to refer the question for a preliminary ruling to the Court of Justice of the European Union.
Click here to read the decision (in French).