“Islam is the religion of the State, which guarantees everyone the free exercise of worship.” This is what Article 3 of the Moroccan constitution stipulates, emphasizing the guarantee of each citizen’s right to freely practice religious worship of all faiths.
However, it goes without saying that in every organized society, it is important to establish rules of conduct, requirements, or more commonly laws. Although it is quite common that the rule of law converges with moral rules—since both rules share the common goal of organizing the coexistence of individuals within the same group—sometimes these rules diverge.
Constitutionally guaranteed and theoretically absolute, freedom of worship is nevertheless moderated by socio-economic requirements to comply with behavioral standards associated with the status of an employee. An employee is subject to the provisions of the Labor Code, which stipulates in Article 21: “The employee is subject to the employer’s authority within the legislative or regulatory provisions, employment contract, collective labor agreement, or internal regulations.”
Thus, one may question whether an employee’s right to free access to religious worship could conflict with the employer’s right to exercise authority over the employee during working hours, and consequently, due to the employer’s ability to organize and reorganize work, restrict or even prohibit the employee from exercising religious worship.
It is not uncommon for two imperatives to clash in court, requiring intervention by the Court of Cassation to define and redefine basic concepts previously thought to be clear, and to trace and retrace the subtle boundaries between enjoying the exercise of a right and abusing that right.
This is exemplified in case No. 687/5/1/2017, where the Court of Cassation rendered decision No. 964 on October 23, 2018, specifying:
“Whereas the Court of Appeal is empowered to assess the seriousness of the misconduct, when it considered that the employee’s absence to perform the Friday prayer was not the direct cause of the damages suffered by the company, as the company’s internal regulations provide that in the absence of the specialized employee, the company itself designates a replacement for fuel supply, and since the company, by instructing another employee, assumes full responsibility for the damage, and that the employee did not commit serious misconduct by being absent to perform the Friday prayer, which is considered a religious obligation, the Court of Appeal correctly justified its decision.”
With this ruling, the Court of Cassation clears the employee of responsibility for damages suffered by the employer following the employee’s absence to respond to the call to Friday prayer, attributing responsibility for the damage to its victim. Thus, in this specific case, the employer is both victim and responsible for the damage, whereas the employee’s responsibility is entirely absolved, concluding there was no serious misconduct justifying dismissal.
However, a different stance was taken by the Court of Cassation in decision No. 552 dated April 16, 2019, case No. 2169/5/1/2017, specifying:
“Whereas it is legally recognized that the employer has the right to supervise and monitor work performance during working hours.
Whereas the employer who prohibited the employee from preparing to perform the prayer at 7:00 PM, after the prayer time had passed according to witness M.M.’s assertions, did not deprive the employee of his right to pray.
Whereas when the Court of Appeal considered the right to perform prayers as a personal right not subject to infringement, it failed to consider that prayers have determined and limited schedules, and that work performance also has precise schedules, and failed to consider the provisions of Articles 20 and 21 of the Labor Code, and thus its decision was unfounded and insufficiently reasoned, exposing its decision to cassation.”
With this ruling, the Court of Cassation considers that the employer is entitled to restrict access to religious worship at specific times and that such restriction falls within the scope of exercising their authority to supervise and direct, inherent to their status as an employer. Therefore, the employee who refuses to comply with their employer’s instructions is at fault and legally responsible for the termination of the employment contract.
Finally, it must be emphasized that the peaceful enjoyment of exercising a right, even constitutionally guaranteed, cannot be interpreted as a gateway to abuse of that right, nor as encouragement for abusive use, nor as permission to use it solely to harm the legitimate interests of others.
