Niqabs, hijabs and hospitals: Ebrahimian v France

Background

Christiane Ebrahimian was a psychiatric social worker on a fixed-term contract at Nanterre Hospital and Social Care Centre. In 2000 the Director of Human Resources told her that, following complaints from patients, her contract would not be renewed because she refused to remove her headgear. He also sent her a written reminder of the Conseil d’État’s opinion of 3 May 2000 that the principles of freedom of conscience, laïcité and neutrality in public services prevented public officials from manifesting their religious beliefs while discharging their functions and that wearing a visible symbol of religious affiliation was a breach of a public official’s duties.

Ms Ebrahimian applied unsuccessfully to the Paris Administrative Court. The Paris Administrative Court of Appeal held that the decision of the lower court related to a disciplinary matter and set it aside on grounds of procedural irregularity. In the light of that judgment, the Director of Human Resources invited Ms Ebrahimian to consult her file and, in a reasoned decision of 13 May 2005, confirmed to her that her contract would not be renewed. She then applied to the Administrative Court of Versailles to set that decision aside, but without success; and the Versailles Administrative Court of Appeal upheld that judgment. The Conseil d’Etat declared inadmissible an appeal on points of law.

In Ebrahimian v France [2015] ECHR 1041, relying on Article 9 (thought, conscience and religion), she complained before the Fifth Section that the decision not to renew her contract breached her right to manifest her religion. The Court held by six votes to one (De Gaetano J dissenting) that there had not been a violation of Article 9.

The judgment

It is not crystal-clear from the judgment (which is available only in French) whether Ms Ebrahimian was wearing a hijab or a niqab: the judgment frequently refers to a voile rather than to a foulard.

However, whatever Ms Ebrahimian was wearing, it was considered to be an ostentatious manifestation of her religion that was incompatible with the neutral space required by a public service [62]. The principle of secularism as defined in Article 1 of the French Constitution and the resulting principle of neutrality of public services were in opposition to the applicant because of the need to ensure equal treatment of the users of the public institution that employed her: it demanded obedience to the strict duty of neutrality in the exercise of its functions. According to the national courts its purpose was to ensure the neutrality of the state, to ensure its secular nature and, therefore, to protect patients from any risk of influence or bias in relation to their right to freedom of conscience. It was clear from the record that the contested decision was founded on the imperative of protecting the rights and freedom of others, not the claimant’s religious beliefs [63].

The Court had already accepted that states parties could invoke the principles of secularism and state neutrality to justify restrictions on public servants wearing religious symbols: especially teachers working in public institutions. It was the status of public official that distinguished them from ordinary citizens. Similarly, in the circumstances of the an employee in a public hospital who was in contact with patients, it was legitimate to avoid manifestation of religious beliefs so as to ensure equal treatment of the sick; the neutrality of the public hospital service could be regarded as linked to the attitude of its officers and demanded that patients should not be in doubt about their impartiality [64]. The interference was proportionate to the aim pursued and, in the circumstances, a wide margin of appreciation was appropriate [65].

The limitation on religious manifestation by public officials in France was is rooted in the principle of state secularism which, according to the Conseil d’État, “engages relations between public authorities and individuals” (intéresse les relations entre les collectivités publiques et les particuliers) and the neutrality of public services [66]. There was no doubt that, after publication of the opinion of the Conseil d’État of 3 May 2000, Ms Ebrahimian knew that she was required to comply with a requirement to dress in a neutral way. In these circumstances, the domestic authorities had not overstepped their margin of appreciation [70].

It was not for the Court to rule on the French model. There was nothing in any text or decision of the Conseil d’État to say that the requirement of neutrality could be tailored to the needs of particular officials and the functions they carried out. It was a strict requirement which had its roots in the relationship established between the secular nature of the state and the freedom of conscience, as stated in Article 1 of the Constitution. The interference could therefore be regarded as proportionate to the aim pursued and, accordingly, the interference with the claimant’s freedom to manifest her religion was necessary in a democratic society; and there had been no violation of Article 9.

Comment

In light of the Grand Chamber judgment in SAS v France (which, it will be remembered, involved a private citizen, not a public employee) the judgment in Ebrahimian hardly comes as any surprise. De Gaetano J entered a powerful dissent, so short that it is worth reproducing virtually in full:

“… there has been a violation of Article 9. The thrust of the judgment is to the effect that the abstract principle of laïcité or secularism of the State requires a blanket prohibition on the wearing by a public official at work of any symbol denoting his or her religious belief. That abstract principle becomes in and of itself a ‘pressing social need’ to justify the interference with a fundamental human right. The attempt to hedge the case and to limit its purport to the specific facts applicable to the applicant is, as pointed out by Judge O’Leary, very weak and at times contradictory. The judgment proceeds from and rests on the false (and, I would add, very dangerous) premise, reflected in paragraph 64, that the users of public services cannot be guaranteed an impartial service if the public official serving them manifests in the slightest way his or her religious affiliation – even though quite often, from the very name of the official displayed on the desk or elsewhere, one can be reasonably certain of the religious affiliation of that official.

Moreover, it would also seem that what is prohibited under French law with regard to public officials is the subjective manifestation of one’s religious belief and not the objective wearing of a particular piece of clothing or other symbol. A woman may wear a headscarf not to manifest a religious belief, or any belief for that matter, but for a variety of other reasons. The same can be said of a man wearing a full beard, or a person wearing a cross with a necklace. Requiring a public official to ‘disclose’ whether that item of clothing is a manifestation or otherwise of his or her religious belief does not sit well with the purported benefits enjoyed by public officials as mentioned in paragraph 66 of the judgment.

While States have a wide margin of appreciation as to the conditions of service of public officials, that margin is not without limits. A principle of constitutional law or a constitutional ‘tradition’ may easily end up by being deified, thereby undermining every value underpinning the Convention. This judgment comes dangerously close to doing exactly that.”

To which one might add that at least the Court didn’t invoke the novel principle of “living together”, as the Grand Chamber did in SAS.

And De Gaetano’s point about names is an acute one: some names will be perceived by the service user as having a particular religious connotation even if that perception happens to be totally wrong in the individual case. There aren’t many Christians called Mohammed; equally, I doubt many Hindus are called Bernadette or Luther. So should hospital staff be known only by their initials, lest they upset the religious sensibilities of patients even though by misperception? (Though, that said, “Christiane” sounds a rather unusual name for a Muslim.)

For a highly-critical analysis of the judgment, see Eva Brems: Ebrahimian v France: headscarf ban upheld for entire public sector.

Cite this article as: Frank Cranmer, "Niqabs, hijabs and hospitals: Ebrahimian v France" in Law & Religion UK, 27 November 2015, https://lawandreligionuk.com/2015/11/27/niqabs-and-hospitals-ebrahimian-v-france/

9 thoughts on “Niqabs, hijabs and hospitals: Ebrahimian v France

  1. Strangely, I find myself on the side of De Gaetano J in this matter. We have here a perhaps a subtle difference in secular views as between France and the UK. Secularism to me is the position that no person or organisation should have privilege based upon their religion. No person employed by the state should exercise preference or discrimination based upon the religion of the citizen (including magistrates dispensing more lenient sentences because the offender was a regular church goer). The suitability or otherwise of details of clothing and personal ornamentation of public employees is a matter for the employer but the employer, if prohibiting, must justify this on rational grounds (safety, appropriate to function etc.). Now the use of a niqab (full veil) might well be excluded on such grounds but they need to be proved case by case. I think that quite a strong case could be mounted on the basis of public servants needing to have strong personal interaction with the citizen in order to discharge their duties. Such interaction involves non-verbal communication. Take, for example, the case of a police family liaison officer.
    Alan Rogers

    • I agree: particularly about the non-verbal communication point (which was the clincher in Azmi v Kirklees MBC [2007] IRLR 434 (EAT)). The problem with the French law on religious dress is that it’s simply a blanket ban without any need to justify in the individual case.

  2. “Quite often, from the very name of the official displayed on the desk or elsewhere, one can be reasonably certain of the religious affiliation of that official.”

    This is an absurd claim. People can be cultural – this that or the other – even with the “religious regalia” and with whatever name whilst actually being atheists as far as actual religion is concerned.

    This is “how dare you assume I am a Christian” territory.

    • Is it so absurd? I’d have thought that if someone was called Bishen Singh Bedi (as it happens, a great Indian spinner) chances would be that he’d be a Sikh (which said bowler was: and he always wore a turban or a patka when playing). Of course names are by no means an infallible guide to religious affiliation – but they’re probably right at least half the time.

      And surely De Gaetano’s point is not about the actual religion or non-religion of the person concerned but about other people’s perception of it, whether accurate or not. Should you be offended because the medic treating you has a particular surname?: no. Should you be offended because the medic treating you is wearing a hijab or a kara?: equally, no.

      • Your argument is erroneous as one may culturally inherit one’s name but not ascribe to said religion as simongardner pointed out. Whilst wearing a hijab or kara clearly overtly indicates at that moment in time you have subscribed and are practising that religion. Homosexuality in Islam is considered a sin no ifs or buts about that. if I was being treated by a doctor wearing a hijab, someone who is expressing their ‘devoutness’ in the UK – then reasonably I would know their view regarding homosexuality – why would I not be offended?

        • I repeat: De Gaetano’s point is not about the actual religion or non-religion of the person concerned but about other people’s perception of it, whether accurate or not.

  3. Pingback: Law and religion round-up – 29th November | Law & Religion UK

  4. Pingback: Law and religion round-up – 24th January | Law & Religion UK

  5. Pingback: Law and religion round-up – 21st February | Law & Religion UK

Leave a Reply to Alan Rogers Cancel reply

Your email address will not be published. Required fields are marked *