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In brief: The Islamic Veil cannot be banned without a neutrality clause, even for commercial reasons

Published on : 01/07/2021 01 July Jul 07 2021
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Newsletter / Recent Case Law

In 2017, the French Supreme court recognized the possibility, expressed in article L. 1321- 2-1 of the Labour Code, to include in a company handbook a general clause that allows the employer to prohibit workers from wearing any religious, political, or philosophical insignia when they are in contact with customers and clients.  

If this restriction is not included in the internal regulations, it is only possible if there is an "essential and determining professional requirement" within the meaning of Directive 2000/78/EC of 27 November 2000.

In a recent judgment of 14 April 2021, the French Supreme Court reiterated these instructions and confirmed that the existence of an essential and determining professional requirement cannot be justified by the damage to the company's image defended by the employer. Thus, in the absence of a valid neutrality clause in the internal regulations, the dismissal of an employee on the grounds of her refusal to remove her Islamic headscarf when she is in contact with customers is discriminatory and therefore null and void. 

Gig drivers: The Paris Court of Appeals grants an Uber driver employment rights 

The Paris Court of Appeal has recognized “employee” status for an Uber driver. While the French Supreme Court recognized a little over a year ago the status of employee to a self-employed worker linked to the Uber platform, the recent case has further weakened the economic model of the American company.

On 12 May of this year, the Paris Court of Appeal ruled that one of the drivers was covered by an employment contract whose obligations had not been respected by the employer, which justified the termination of the contract. 

In support of its decision, the court noted in particular that the driver, by joining the service provision contract, "integrated a service organized by Uber, which unilaterally determined the conditions of execution of the service". In addition, the company reserved the right to modify "at any time the calculation of the user rate", the driver having suffered in this case an "average decrease of 20% in rates". Another element that was retained was that Uber had "the power to control the performance of the service and to punish any breaches observed" with regard to its driver. The company used this power against the driver by temporarily disconnecting him following his refusal to accept passengers. From the combination of these elements, the Court of Appeal concluded that an employment contract existed and that the employer was to blame for the breach of the contract, as he had not respected certain obligations attached to the status of employee. 

As a result, the driver was awarded €58,000 in various allowances and reimbursement of expenses.
 
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