The French Court of Cassation recently had to decide whether a disciplinary transfer, ordered by the employer and refused by the employee because of his religious beliefs, can be considered justified by an essential and determining occupational requirement within the meaning of Article 4(1) of Directive 2000/78 of 27 November 2000.

As is well known, according to that provision, restrictions on religious freedom must be justified by the nature of the task to be performed, meet an essential and determining occupational requirement and be proportionate to the aim pursued. The CJEU states that the notion of "essential and determining occupational requirement", within the meaning of this text, refers to a requirement objectively dictated by the nature or conditions of exercise of the professional activity in question.

 

In the case before the Cour de Cassation, an employee had been disciplinarily transferred for refusing to perform his duties on the site to which he had been assigned under a mobility clause, a clause which was legitimately invoked by the employer. The employee had justified his refusal to go to his assigned site on the grounds that his Hindu religious beliefs prohibited him from working in a cemetery. The employee then challenged his disciplinary transfer, claiming discrimination based on his religious beliefs.

The judges upheld the appeal, stating that it was up to the employer to assess whether, considering the constraints inherent in the company, it was possible to offer the employee a job compatible with the needs of each party, which the employer had not done. The judges had therefore annulled the sanction and the subsequent dismissal pronounced in part due to the employee's failure to comply with his obligations.

 

The French Court of Cassation censured the decision, considering that the disciplinary transfer was justified by an essential and determining occupational requirement within the meaning of Article 4(1) of the Directive of 27 November 2000.

In particular, the Court found that the assignment of the employee, a team leader in the cleaning sector, to a building site in a cemetery to carry out his contractual duties corresponded to the company's interest and that the disciplinary transfer was the legitimate application of a mobility clause agreed in advance between the parties. The Court also noted that the disciplinary measure was proportionate to the aim pursued, since it made it possible to maintain the employment relationship by assigning the employee to another cleaning site. These conditions therefore justified the restriction on the employee's religious freedom, ruling out the discriminatory nature of the sanction adopted against him.

 

(Comment by Nadia Spadaro)