The federal constitution enshrines religious freedom. Everyone has the right to join or not to join a religion and to practice it. This freedom must be reconciled with work, which is sometimes not an easy task.
Protection of legal personality
The Code of Obligations provides that the employer must protect the personality of his/her employees. Religion is an integral part of the employee's personality. In principle, the employer must respect and protect the employee's religious freedom.
This protection of personality takes effect at the job interview. Religion is a sensitive personal matter. In principle, the employer may not ask the employee about his or her religion.
Does a church have the right to know the religion of his/her employees? What does an employer risk if he refuses to hire an applicant because of his/her religion?
An employer is obligated to respect equal treatment of his/her employees. The situation can be delicate when he grants a prayer room, additional breaks or the right to wear a conspicuous sign to certain employees.
Cantonal holidays are based on the Catholic and Protestant faiths. If the employee is of another faith, this may be a problem as he or she will not automatically have time off on religious holidays.
The Labor Act provides that an employee may request leave from his employer, under certain conditions, to attend religious holidays. Is this leave paid? Can the employer ask the employee to make up the time lost or refuse to grant the leave?
Some religions require daily prayers or attendance at a weekly service. This can put a strain on the company's organization. The employee's religious freedom may be limited when the employer's interests are paramount.
Inability to work
The constraints imposed by religion are sometimes such that the employee is no longer able to work properly, especially during the fasting period. The employer can and must take measures in such a situation. Failure to do so may result in liability in the event of an accident.
Despite religious freedom, the wearing of the veil is not always well accepted. It can harm the company's image or cause difficulties in relations with customers, suppliers or colleagues.
The employer may issue guidelines on the dress code of its employees. If, however, such guidelines are not justified by interests greater than the employee's religious freedom, they are unlawful.
Wearing a veil that creates conflicts within the company, regular absences without the employer's consent to go and pray, inability to work due to fasting... Religion in the workplace is likely to create certain conflicts or harm the company's interests.
The employer must be particularly vigilant. Religious freedom is a constitutional right and is part of the employee's personality. A termination is very likely to be considered wrongful, unless the employer can prove that the employee's religion creates a serious prejudice within the company.
In addition, where there are labor disputes, the employer must take appropriate action. He/she cannot simply dismiss the employee, even if his/her religion is the source of the tension.