French secularity prevails in final ruling on Islamic veil

Facts:

Mrs. X was an employee of a crèche. The internal rules of that crèche imposed a general obligation of secularism and neutrality. After returning from her maternal leave, Mrs. X refused to take off the Islamic head scarf while working in the crèche. As a result, she was dismissed from work for serious misconduct.

Considering her dismissal to be illegal she took her case to court. The judgment of the Supreme Court from the 25^th of June 2014 came after 5 years of lengthy procedure during which the case has been deliberated upon by the Conseil des Prud’hommes (employment tribunal), the Court of Appeal in Versailles, the Social Chamber of the Supreme Court and the Court of Appeal in Paris. The judgment from the 25^th of June 2014 was rendered by the plenary assembly of the Supreme Court which includes representatives from all chambers of the court. The plenary assembly upheld the judgment of the Court of Appeal in Paris and confirmed Mrs. X`s dismissal for serious misconduct. Taking into consideration the divergences between the decisions rendered by each court, the recent judgment is a welcome finale which sheds some light on the approach of judges to the delicate matter of expressing religious convictions in the work place.

Commentary:

In principle, the employer has to respect the opinions and religious convictions of its employees. Any restrictions have to:

• be justified by the nature of the task to be accomplished by the employee;
• correspond to the essential and requisite professional requirements;
• be proportionate to the aim pursued.

The Baby-Loup case shows how differently such criteria may be interpreted by the judge. The Social Chamber of the Supreme Court estimated that the clause contained in the internal rules, imposing a general obligation of secularism and neutrality, was too general and imprecise.

However, the plenary assembly of the Supreme Court took a different view. It considered that the wording of the clause was sufficiently precise, justified and proportionate in light of the specific conditions in which the association operated. It seems that the size of the association was an important factor in the reasoning of the plenary assembly. It took into consideration its limited workforce and the fact that all employees were in direct contact with children and their parents. In consequence, one may wonder what the decision would be if the organisation in question was of more considerable size, where not all employees would be in direct contact with children.

The judgement of the plenary assembly of the Supreme Court brings to an end the proceedings before national courts. Nevertheless, there remains the possibility of a further appeal before the European Court of Human Rights.

The most important lesson from the judgement of the plenary assembly is that the vague wording of the criteria applied by the judges leaves them with considerable freedom of interpretation. Therefore, any employer willing to restrict the liberty to express religious convictions must formulate such restrictions with great precision, while taking into consideration the specific conditions in which their organisation operates.