Back in December 2015 I commented on the decision of the European Court of Human Rights in Ebrahimian v France, which concerned the termination of employment of a health worker at a hospital who refused (on religious grounds) to remove her headscarf when she was on duty at work. By way of a brief recap, state secularism (or laïcité) is a strongly protected principle in French society. That is why you will not hear hymns or carols sung in French schools and there was a big fuss last month when a village commune tried to place a nativity scene in the square in front of the local mairie. It was determined that Ms Ebrahimian, by wearing a symbol of religious affiliation, was breaching her duties as a public official. In its judgment the court held that the non-renewal of her employment contract did amount to an interference with her right to manifest her religion, contrary to Article 9 of the European Convention on Human Rights. However, that interference had the legitimate aim of protecting the rights and freedoms of others, pursuant to French law. Accordingly, her claim failed.
A similar case has now surfaced in the Versailles administrative Court of Appeal. A trainee doctor of Egyptian origin was dismissed from his job at Saint-Denis hospital centre in Seine-Saint-Denis because his “imposing” beard constituted an “ostentatious display of religious belief”. The individual concerned declined to deny or confirm that his appearance was intended to be a way to “demonstrate his religious activity”. On 19 December, the Court of Appeal supported the decision, noting that although the wearing of a beard “even long”, cannot “on its own” cannot (necessarily) constitute a sign of religious affiliation, the “circumstances” entitled the hospital to act as it did.
The judgment noted that the man had:
“…limited himself to invoking the respect of his private life, without denying that his physical appearance was likely to manifest ostensibly a religious commitment”
This was the circumstance which allowed the hospital to establish a breach of laïcité, even if the the wearing of the beard “was accompanied by no act of proselytism”. Accordingly, the decision to dismiss was “not disproportionate”.
His lawyer, Nawel Gafsia, was unimpressed by the decision, describing it as “scandalous” and “hallucinating”, adding:
“They relied on his refusal [to trim his beard] because it was a manifestation of his right to private life. He is called Mohamed. If he was called Lionel Dupont, with an even bigger beard, that would not have been a problem…It is the Muslim who is suspect by nature. It is a completely discriminatory and racist decision.”
So, why am I reporting a case in France concerning laïcité, which is a distinctly French concept? Well, as regular readers will know, I am fascinated by the uncomfortable interaction between religion and law (e.g. the “gay cake” in Northern Ireland), and the more directly relevant attempts by employers to restrict religious symbolism in work. The most obvious and significant example is the decision in Eweida v British Airways plc, (wearing a cross at work).
The upshot, as matters stand, is that it should not be assumed that the ECHR will routinely find against the employer in such circumstances. It is self-evidently a politically emotive topic but it should not be assumed that the expression of religious affiliation will always prevail.