The Protection of Employee's Freedom of Expression in European and French Law

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[...] The application of the principle of secularism to public sector employers Here: http://www.avocats.paris/laicite-et-droit-du-travail-0 2.2.2. The applicability of the principle of secularism to private sector employers managing a public service The principle of secularism established by art. 1er This is not applicable to employees of private sector employers who do not manage a public service. (Soc March 2013, Baby Loup) The principle of secularism applies, on the other hand, to the entire public service, including when it is ensured by private sector organizations. [...]

[...] This proportionality test can only concern the so-called 'relative' rights, as opposed to the rights qualified as 'absolute', such as, for example, the prohibition of torture and inhuman or degrading treatment laid down in Article 3 of the European Convention on Human Rights, for which the judge must limit himself to searching for the existence or not of an infringement. The relative rights are therefore, for example, the employee's right to freedom of expression, protected both in European law and in internal law, where it is included in the constitutional block and in the Labour Code. The protection of employees' freedom of expression is the subject of a rich jurisprudence. [...]

[...] To what extent does French law allow an employer to restrict the fundamental freedom of expression of an employee? Introduction and detailed plan On 19 December 2008, Fatima Afif was dismissed by the Baby Loup nursery for violating her obligations arising from the internal regulations that impose on staff the principles of secularism and neutrality. The Paris Court of Appeal, in its ruling of 27 November 2013, justification to the employer on the grounds that the clause of the internal regulation of an association managing a nursery inviting respect for the principles of secularism and neutrality in the workplace did not have a general character, but was sufficiently precise, justified by the nature of the tasks performed by the employees of the association and proportionate to the sought purpose. [...]

[...] We will then be led to ask to what extent the French law allows the employer to restrict the fundamental freedom of expression of an employee. We will show in the first part that the employee's freedom of expression is a fundamental right guaranteed both in European law and in internal law. Then we will try to analyze the circumstances in which the restriction of this right does not constitute a disproportionate infringement. 1. The employee's freedom of expression, a fundamental right guaranteed 1.1. [...]

[...] The protection of the employee's freedom of expression in domestic law 1.2.1. The protection of freedom of expression within the block of constitutional legitimacy - Citation of Article 11 of the Declaration of the Rights of Man and of the Citizen Article 11 of the Declaration of the Rights of Man and of the Citizen of 1789: « The free communication of thoughts and opinions is one of the most precious rights of man - Reminder of what is the block of constitutionality 1.2.2. [...]