Religious Symbols in the Workplace

Friday, December 18, 2015 | Published by

There is extensive case law, including in the European Court of Human Rights (“ECHR”), which considers the balance between, on the one hand, the right of an employee to freely express his religious beliefs, and, on the other hand, the principles of secularism and neutrality applicable in a particular State.

However, the vast majority of case law on this subject considers that balance in an educational context, where the neutrality of public education and the need to protect students – more easily influenced by pressure and proselytization – justifies restrictions on the wearing of religious symbols by employees of public education institutions.

Whilst that was the position, the recent decision of the ECHR in Affaire Ebrahimian c. France1 (“Ebrahimian“) extends the application of that justification to employees of public hospitals and, arguably, employees of all French public bodies.

Background

Affaire Ebrahimian was employed as a social worker at Nanterre, a public healthcare institution, on a fixed term contract. After a period of service of just over one year, and following Ms Ebrahimian’s repeated refusal to remove her veil (which she wore for religious reasons) during the performance of her duties, Nanterre decided not to renew Ms Ebrahimian’s contract.

Ms Ebrahimian alleged that the non-renewal of her contract constituted a violation of Article 9 of the European Convention on Human Rights and Fundamental Freedoms (“the Convention”), which secures the right to freedom of thought, conscience, and religion, subject to certain limitations which must be prescribed by law and which are necessary in a democratic society for the protection of certain rights and interests.

Relying on the principles of secularism and neutrality, Nanterre maintained that it was not Ms Ebrahimian’s religious beliefs that resulted in the decision not to renew her contract, but, rather, it was its aim to protect the rights and freedoms of others.

Having exercised all avenues of redress available within the French justice system – where it was found that the principle of secularism and the neutrality of public services precluded its agents from demonstrating their religious beliefs through the wearing of religious symbols – Ms Ebrahimian filed a complaint with the ECHR of an alleged violation of Article 9 of the Convention.

Findings of the majority

Relying on previous decisions of the ECHR, the majority in Ebrahimian accepted the general position that the principles of secularism and neutrality, as prescribed by the laws of a particular State, could justify bans on the wearing of religious symbols by employees of public bodies. The majority highlighted that the status of employees of public bodies, as officials of those bodies, distinguishes them from ordinary citizens who are not representatives of the State, and such status requires those employees to exercise discretion in the expression of their religious beliefs during the performance of their duties.

Having accepted the general position, the majority considered whether the interference with Ms Ebrahimian’s right to religious freedom was proportionate to the aim pursued by the State (to protect the rights and freedoms of others). In making that assessment, the majority considered the principles of secularism and neutrality as they applied in France, including reference to the following:

(a) Article 1 of the French Constitution of 4 October 1958, which provides that France is an indivisible, secular, democratic and social State;

(b) the opinion of the Council of State (Conseil d’État) of 3 May 2000, which states that the principles of secularism and neutrality apply to all public services and that those principles obstruct the right of public officials to manifest their religious beliefs; and

(c) the opinion of the Council of State of 19 December 2013, which states that the principles of secularism and neutrality are the sources of the requirement of religious neutrality of the public service and that this requirement applies, in principle, to all public services, but not to other services.

In the majority’s assessment of proportionality, it also considered the circumstances in which Ms Ebrahimian worked. In this regard, the majority recognised that Ms Ebrahimian worked in the psychiatric ward of a hospital, the fragility of the patients with whom Ms Ebrahimian was in contact, the importance of protecting the religious beliefs of the patients and the need to ensure that patients could not doubt the impartiality of officers of a public body.

Having regard to the above, and following a stark reminder of the subsidiary role that the ECHR plays and that the French authorities were best placed to undertake an assessment of proportionality, the majority found that the interference with Ms Ebrahimian’s right to religious freedom was proportionate to the aim pursued by the State.

Considerations

The decision of the ECHR in Ebrahimian is a considerable extension of the case law in the area, which almost exclusively has been considered in an academic context, where it has been recognised that there is a clear need to protect students who are seen as particularly vulnerable to pressure and proselytization.

Whilst it is clear that the ban on the wearing of religious symbols, justified by the principles of secularism and neutrality, has been extended at least to employees of public hospitals, in Judge O’Leary’s partly dissenting opinion, her Honour highlighted that depending on how the judgment of the majority on proportionality is interpreted, Ebrahimian could be a precedent for the dismissal of any employee of the French public sector who visibly wears religious symbols in the exercise of their work.

Given the various decisions of the Court of Cassation (Court de Cassation) that have held that the principles of neutrality and secularism of public service are applicable to private bodies performing public services, the decision in Ebrahimian could have even greater implications.

Conclusion

Ebrahimian is an important reminder that in certain circumstances, an employer may be able to restrict its employees from wearing religious symbols during the exercise of their duties and discipline those employees who do not comply with that restriction.

Whilst the aim of the restriction does not necessarily have to apply to the protection of the rights and freedoms of others, at least for those employers who operate in States that are members to the Convention, the aim must be proportionate to the interference with the right of an employee to freely express his religious beliefs.


[1] Affaire Ebrahimian c. France, no. 64846/11, 26 November 2015.
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