France, the Islamic veil and religious discrimination in employment

France 24 reports that the Social Chamber of the Court of Cassation has ruled that the dismissal of Ms Fatima Afif from her job at a private nursery school in Chanteloup-les-Vignes for refusing to remove her Islamic veil at work amounted to religious discrimination and awarded her damages of 2,500 euros. The Court explained that because the Baby Loup nursery was a private institution whose staff did not provide a public service, the principle of secularism did not apply. On the other hand, the Court upheld the dismissal of a health-care technician on the grounds that she worked for an organisation that provided a public service.

The Court issued a press statement summarising its conclusions in the two appeals [Arrêts n°536 et n°537 du 19 mars 2013 Chambre sociale de la Cour de cassation N° de pourvoi : F 11-28.845 et E 12-11.690]: the following is my own translation:

Judgments No. 536 and No. 537 of March 19, 2013 Social Chamber of the Court of Cassation.

By two judgments of 19 March 2013 the Social Chamber of the Court of Cassation [la Chambre Sociale de la Cour de Cassation] set out the boundaries of the principle of secularism [laïcité] in two cases of dismissal of an employee on the grounds that she was wearing an Islamic veil revealing her face but covering her hair and thus contravening a provision of her employer’s internal rules.

In the matter of the primary health insurance fund of Seine-Saint-Denis, in the case of an employee working as a “technicienne de prestations maladie” [sickness benefits officer], the Court of Cassation adjudges for the first time that the principles of neutrality and secularism of the public service are applicable to all public services and includes those provided by private bodies. If the provisions of the Code du Travail are intended to apply to agents of a primary health insurance fund they must always be subject to constraints resulting from the fact that they are part of the provision of a public service – which especially prohibits them from manifesting their religious beliefs by external signs, in particular by clothing. The dismissal of the employee is therefore upheld.

In contrast, in the case of Baby Loup (F 11-28845), a private nursery which cannot, therefore, in spite of its mission of general interest, be treated as a private [legal] person managing a public service, the Court points out that the principle of secularism established by the Article 1 of the Constitution does not apply to employees of employers of private organisations that are not providing a public service. The principle of secularism cannot therefore be invoked to deprive those employees of the protection assured them by the provisions of the Code du Travail.

According to Articles L 1121-1, L 1132-1, L 1133-1 and L 1321-3 of the Code du Travail incorporating the provisions of the EU Directive of 27 November 2000 prohibiting discrimination based on religious belief in particular, restrictions on religious freedom must be justified by the nature of the task, must answer a genuine and determining occupational requirement and must be proportionate to the aim pursued. This is not the case in respect of the general clause on secularism and neutrality in the bye-laws of the Baby Loup Association applicable to all jobs in the company. Such a clause is invalid: the dismissal of an employee for serious misconduct on the grounds that she violated the provisions of this clause of the rules constitutes discrimination on grounds of religious convictions and must be declared void. The judgment of the Court of Appeal of Versailles upholding the dismissal is therefore quashed.”

Comment: In France, as in Turkey, laïcité is almost an article of faith in itself. The Baby Loup decision evoked an immediate reaction from the Government. Interior Minister Manuel Valls criticised the ruling during question time at National Assembly on Tuesday:

“I want to take a break from my function for a few seconds to tell you how much I regret the court’s decision on the Baby Loup case today, which has called laïcité into question”.

On grounds of laïcité, Loi n° 2004-228 du 15 mars 2004 forbids the wearing in state schools of symbols or clothing manifesting a religious affiliation [signes ou de tenues manifestant une appartenance religieuse] and, so far, challenges to it in Strasbourg under Article 9 ECHR have been unsuccessful. However, given that the ban on religious dress in schools was met with so much criticism at the time both from foreign observers and from some domestic religious groups, it is hardly surprising that this latest ruling seems to have upset the Government. French politicians tend to see laïcité as absolute and indivisible: an attack on any particular manifestation of laïcité seems to be regarded as an attack on the principle as a whole.

In April 2011 it became generally illegal in France to cover one’s face in public, which means that a Muslim woman who walks out into the street wearing a niqab or a burqa risks a fine of €150. The broader questions, of course, are whether the ban violates the Article 9 rights of observant Muslim women and whether it will survive an eventual challenge in Strasbourg – for which see, for example, Daniel Barton: ‘Is the French Burka Ban Compatible with International Human Rights Law Standards?’.