Social right. Political elections regularly give rise to disputes over the political expression of employees. A priori the question is simple: “Everyone has the right to freedom of expression,” tell us both thearticle 10 of the European Convention on Human Rights what’Article 11 of the Charter of Fundamental Rights of the European Union.
Except, specifies the Declaration of the Rights of Man and of the Citizen of 1789, “to answer for the abuse of this freedom in the cases determined by the Law”. Thus, the employee’s freedom of expression may have limits, particularly in the workplace where the employer’s power of organization and discipline is exercised.
The first limit applies to the employer. Article 1121-1 of the labor code specifies that it “cannot impose restrictions on freedom of expression which are not proportionate to the aim sought in the interest of the company and justified by the nature of the tasks carried out by the employee”.
If the “labor” law of August 8, 2016 made it possible to introduce, into the internal regulations, the tool which specifies in particular the rules of discipline at the company, a neutrality clause prohibiting, for example, the wearing of any political sign, however, this is only permitted for employees who are in contact with customers (Court of Justice of the European Union, Grand Chamber, March 14, 2017, cases C-157/15 and C-188/15; Cass. soc., Nov. 22, 2017, no. 13-19.855).
For the employee, the assessment of the abuse of freedom of expression is made on a case-by-case basis. In a judgment of the Toulouse Court of Appeal dated March 4, 2011 (no. 09-6144), the judges accepted the dismissal of an employee who had demonstrated active political activism during his working hours, in an establishment for the elderly. He collected checks from them for the benefit of a fundraising association which financed the electoral campaign of a politician. However, disputes over political proselytism based on freedom of expression remain rare.
Right to respect for private life
In a more recent case, an employer imposed a sanction on the grounds “what is the fault of an employee who commits political proselytism towards subordinates, in a context not devoid of any link with the life of the company”.
This motivation was deemed insufficient by a court of appeal, approved by the Court of Cassation (Cass. Soc. May 29, 2024, 22-14.779). In this case, the political documents in question had been given by the sanctioned employee to an employee outside the company’s premises and, moreover, the delivery of the political program in question to another employee had taken place at the ‘from a company trophy presentation in which both participated, but outside the time and place of work.
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