The European Court of Human Rights (ECHR) has ruled in Ebrahimian v France (request number 64846/11) that the non-renewal of an employee's contract on the basis of her refusal to remove a headscarf worn for religious reasons was lawful in order to preserve State secularism and the neutrality of public services in France.
Mrs Ebrahimian (E), a Muslim woman, was employed under a fixed term contract as a social assistant in the psychiatric unit of a hospital in Nanterre, France (H). Her work involved liaising with staff, patients and social services.
After being employed for just over a year, E was informed that her contract would not be renewed because she had refused to remove her headscarf when asked. H argued that this was a breach of its staff dress code and that complaints had been made by patients.
French court decisions
E's initial complaint to a tribunal was unsuccessful but, on appeal, the procedure by which she had been informed of the non-renewal was criticised. Further, the appeal court considered that the real reason for her dismissal was not merely a breach of the dress code but that the headscarf was in fact a manifestation of E's religious beliefs and it quashed H's decision.
The issue of public service providers manifesting their religious beliefs had been discussed in the context of teachers in May 2000 and the Conseil d'Etat (the highest French court) had issued an opinion stating that the principles of freedom of conscience, the secular State and the neutrality of public services meant that manifesting religious beliefs while working in that capacity was a breach of employees' public duties.
Following the initial appeal and in reliance on the opinion of the Conseil d'Etat, H affirmed its decision not to renew E's contract but this time on the basis of the manifestation of religious beliefs.
E was unsuccessful in her second complaint to the tribunal and both subsequent appeals. E then took her case to the ECHR on the basis that her Article 9 rights (freedom of thought, conscience and religion) had been breached.
By a majority of 6 to 1, the ECHR rejected E's complaint.
Although the ECHR accepted that there was a prima facie infringement of E's Article 9 rights, case law from the Constitutional Court and the Conseil d'Etat consistently showed that neutrality in public services was a fundamental element of the secular State, which was the cornerstone of the French constitution, and the infringement of E's Article 9 rights was necessary in a democratic society in order to uphold this principle.
The ECHR relied on the same Conseil d'Etat opinion as H but suggested that it should have been extended to all public service workers (rather than just teachers) at the time it was issued.
There was no suggestion that E had in any way attempted to use her religion to put pressure on patients or attempt to convert them to Islam but the ECHR considered that, in the interests of ensuring equal treatment, it was necessary to prevent E (and all public service providers) from manifesting their religious beliefs in the execution of their public duties.
This case occurred in France but it will be of interest to UK employers too. The ECHR has confirmed that, even though a rule may infringe on an individual's rights, it can - in some circumstances - be justified. Each case will turn on its specific facts. This case concerned the secular State but we have also been involved in a case where the justification for preventing an employee from manifesting religious beliefs at work was based on health and safety grounds. Employers need to be considerate to employees' religious beliefs but if they are unable to accommodate a particular manifestation of that belief in the workplace, the findings in this case may be helpful to defend any complaints that arise as a result.