Practical Law

The non-renewal of a French hospital social worker’s contract for her refusal to stop wearing a headscarf was found to be a legitimate interference with her Article 9 rights in the ECtHR case of Ebrahimian v France. The basis of the decision, that it was necessary to protect the neutrality of public services, also has something in common with AG Kokott’s Opinion in Achbita (although Achbita concerned the Framework Directive, not the Convention). In Achbita, the private employer was justified in dismissing a receptionist for failing to remove her headscarf on the basis that it was seeking to uphold its corporate policy of ideological neutrality.

In Ebrahimian, it was noted that secularism is enshrined in Article 1 of the French Constitution and that public officials’ freedom of conscience is guaranteed by national law. Respecting everyone’s freedom of conscience may involve asking some to refrain from manifesting their beliefs. This theme has been played out in ECtHR case law, often in the educational sector (where courts have been sensitive to the vulnerability of students and the need to protect them from pressure and proselytization from teachers).

Interestingly, one of the (partly) dissenting judgments in Ebrahimian identified two different approaches to proportionality contained in the majority judgment:

• The first approach, in line with case law cited, was context-specific and sought to have regard to the employer setting, employee role and degree of intrusiveness on the employee concerned when assessing whether interference was proportionate.

• The second approach was more “abstract” and invoked the principle of neutrality and secularism as a justification in its own right for interference. The dissenting judge commented that, “there is a much more abstract assessment of proportionality, rooted in the very abstract nature of the principles of neutrality and secularism on which the national authorities and the Government principally relied”.

Despite acknowledging that the employee was not exerting pressure or prosleytizing in this case, and despite not being able to supply evidence of how administrative neutrality was compromised by the wearing of a headscarf, the majority judgment allowed the principle of secularism-neutrality to triumph over Ms Ebrahimian’s right to manifest her religious belief. In part, the judgment found this was because headscarves are inherently “ostentatious”. The dissenting judgment also noted that “traces of Eweida” were lost in that little consideration was given to reasonable accommodation of the employee (although in Eweida, there was no backdrop of French secularism).

The AG’s Opinion in Achbita seems to represent a shift away from a delicate balancing exercise being carried out, in favour of the second more abstract approach referred to above, namely an assertion of an employer’s value (be that secularism or neutrality) as a justification in its own right.

Proportionality has always required a concrete assessment of the particular circumstances of the case, but Ebrahimian and Achbita show a limited engagement with this delicate balancing exercise. As the (partly) dissenting judgment in Ebrahimian states: “The risk is therefore that any measure taken in the name of the principle of secularism-neutrality and which does not extend a State’s margin of appreciation – itself very wide because what are at issue are choices of society – will be Convention compatible”.

It was pointed out in Eweida that it will be rare for the employer’s corporate brand to be a justification in itself, although it might well constitute a legitimate aim. Yet in Achbita, G4S’s corporate policy of “political and ideological neutrality” itself forms the basis of the justification defence.

What exactly is a policy of “neutrality”? Suits and high heels may be the corporate norm, but they are not inherently neutral. If a receptionist wearing a headscarf compromises the image of neutrality, does a disabled receptionist also have this effect? Is neutrality another word for photo-shopped humanity, a person remade in the image of a corporate brand?

What if corporate neutrality, with its chilling requirement that people suppress those parts of themselves which do not give off the image of a neat, homogenous culture, is essentially at odds with the concept of diversity?