Labor law, employer freedom, non-discrimination, hiring obligations, people with disabilities, labor code, penal code, professional equality, recruitment methods
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Abstract
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Abstract
Analysis of the employer's freedom to choose employees under labor law, subject to non-discrimination and hiring obligations towards people with disabilities.
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[...] Is the freedom to choose your collaborators a myth? « The first of the rights of man is individual liberty, liberty of property, liberty of thought, liberty of labor. Jean Jaurès This freedom of work is understood by Jean Jaurès as one of the first rights of Man and it is today at the heart of labor law but sometimes raises many questions. The term liberty in its etymological sense 'liber' is understood as the 'free' condition of that which is not subject to the coercive power of another ». [...]
[...] 1121-1 of the Labor Code anchors the principle No one may infringe upon the rights of persons and the individual and collective liberties unless the restrictions are justified by the nature of the task to be performed and proportionate to the objective sought. », and sets up a triple control in order to reconcile the rights and freedoms of employees with the power of direction of the employer. Thus, the employer's freedom to choose their collaborators is limited by the principle of non-discrimination. However, it is not the only limit to this freedom, which is also limited by the hiring obligations incumbent on the employer towards people with disabilities or war veterans. [...]
[...] Therefore, the freedom of employers is found to be hindered by the quest for professional equality through the principle of non-discrimination, so the decision of an employer to refuse to hire an employee must necessarily be proportionate and justified. B. A necessarily proportionate and justified freedom The upheavals that society experienced in the 1980s prompted the legislator to change the philosophy of the Labor Code, moving from a workers' law to a law of the person at work. This first transformation of the legal landscape appeared in a judgment rendered by the Council of State on February "Société Peintures Corona" where the Council of State found certain provisions of an internal code to be null and void "with regard to the infringement they cause to the rights of the person". [...]
[...] Thus, this freedom collides today with the protection of the fundamental rights of the candidate and professional equality, which is why this question has a particular interest, in a society that seeks to eliminate gender and sex inequalities at all costs, the question of the employer's freedom to choose their employees has been regulated by the legislator on numerous occasions, who by the law of December introduced into the Labor Code what could be considered as a corollary to the principle of freedom to choose one's collaborators, providing in this law numerous provisions relating to individual freedoms and recruitment, taking up the proposals made by Gérard Lyon-Caen in his report 'Les libertés publiques et l'emploi', introducing thus a principle of non-discrimination, affirming that no one can impose restrictions on the rights of persons and individual and collective freedoms that are not justified by the nature of the task to be performed or proportionate to the goal sought. Therefore, one is well-founded in wondering whether the freedom to choose one's collaborators is today a myth? [...]
[...] This also opens up other possibilities for employers to fulfill their employment obligations, thus promoting dialogue, mutual willingness and no longer just rigid work obligations without negotiable conditions. It also aims to move away from the aid logic that permeates disability policy and replace it with the notion of employment. [...]
