In Ebrahimian v France, the European Court of Human Rights has held that a hospital worker whose contract was not renewed after she refused to remove a headscarf, worn for religious reasons, while at work, did not suffer a breach of her right to religious freedom under Article 9 of the European Convention on Human Rights. The ECtHR held that the principle of secularism and the neutrality of public services justified the interference with the worker’s right to manifest her religious beliefs.
E, a Muslim woman, was engaged under a fixed-term contract as a ‘social assistant’ in the psychiatric unit of a hospital in Nanterre, France. At her interview she had worn a headscarf, which covered her hair, neck and ears but left her face unobstructed. She continued to wear the headscarf while working, which involved acting as a liaison between patients, the hospital and social services. After just over a year of work, the hospital informed E that her contract would not be renewed since she had refused to remove the headscarf, in breach of hospital rules, which had given rise to complaints from patients.
E complained about the non-renewal to a tribunal. She was unsuccessful at first instance but an appeal court held that there had been irregularity in the procedure by which E had been informed of the non-renewal. The appeal court considered that the real reason for the non-renewal was not simply the breach of a dress code that applied to all public service workers but the fact that E’s wearing of the headscarf was a visible manifestation of her religious belief. The appeal court therefore quashed the hospital’s decision. The hospital then re-took the decision and confirmed the non-renewal of E’s contract, this time making it clear that the reason was her religiously-motivated insistence on wearing the headscarf at work. E brought new proceedings to challenge this ground of non-renewal. A tribunal rejected the complaint, finding that the non-renewal of E’s employment for wearing a garment that ‘ostentatiously’ manifested her religion was justified by the principle of secularism and the neutrality of public services. E twice appealed unsuccessfully and eventually lodged a complaint in the European Court of Human Rights. She argued that the non-renewal of her contract was a breach of her right to manifest her religion under Article 9 of the European Convention on Human Rights.
The ECtHR rejected E’s complaint by a majority of six to one. It accepted that E’s Article 9 rights were engaged and that there was a prima facie infringement. However, it considered that the infringement was justified under Article 9(2). The ECtHR was satisfied that it was ‘prescribed by law’, as Article 9(2) requires, since the French Constitution enshrines the principle of secularism, and case law from the Constitutional Court and the Conseil d’Etat (the highest court in matters of public and administrative law) has consistently held that the neutrality of public services is an important part of that principle. The ECtHR accepted that no national legislation or case law specifically prohibited hospital workers from wearing an Islamic headdress. However, it relied on a judgment of the Conseil d’Etat, decided six months before the non-renewal of E’s contract, which endorsed a similar restriction in relation to teachers. In the ECtHR’s view, this judgment should have made it clear that the same standard could be expected of all public service workers.
The ECtHR went on to hold that the infringement of E’s Article 9 rights had the legitimate aim of protecting the rights and freedoms of others, having regard to the principle of secularism and public service users’ rights to receive services free from discrimination. It also accepted that the application of the rule to E was ‘necessary in a democratic society’. While there was no suggestion that E had been proselytising or putting patients under pressure, it could reasonably be considered necessary to prevent a public hospital worker from manifesting her religious beliefs in the exercise of her functions, in the interests of ensuring the equal treatment of patients. As for whether this was a proportionate means of preserving secularism and neutrality, the ECtHR accepted that E had suffered serious consequences for manifesting her religious convictions. However, it was satisfied that, following the Conseil d’Etat’s decision in the teachers’ case, E knew that she was expected to conform to a neutral dress code while at work and that she had been asked to reconsider her decision. In these circumstances, the non-renewal of her contract for failure to comply was proportionate.