Thursday, November 26, 2015

ECHR BansThe Burqa! (Sort Of)

The European Court of Human Rights has held that France did not breach the human rights of a Muslim woman whose contract was not renewed because she refused to remove an Islamic headscarf in the workplace.

The lady in question was engaged under a fixed term contract in a psychiatric unit at a hospital in France. She was not prepared to stop wearing the headscarf, which had given rise to complaints from patients and was a breach of the hospital rules.

Having exhausted her legal options in France she presented a complaint to the ECHR alleging a breach of her Article 9 right to religious freedom.

By a 6 to 1 majority her complaint was rejected.

Whilst the Court accepted that Article 9 was engaged, and there had been a restriction of her right to manifest her religion, it went on to find that this was justified. The restriction had the legitimate aim of protecting the rights and freedoms of others, having regard to the principle of secularism and public service users' right to receive services free from discrimination, and was "necessary in a democratic society."

Issues around religious freedom in the workplace and in the provision of goods and services can be extremely difficult, especially as they often involve balancing the rights of those of a particular faith with the rights of others. Protecting the rights of one will frequently involve curtailing the freedom of the other - see for example the cases involving the provision or otherwise of wedding cakes to same sex couples by Christian bakers.

The French case might well not have been decided in the same way by a Tribunal in the UK. "Secularism" is a much more central principle of French society than it is in Britain. In a previous case a hospital was entitled to require an employee not to wear a cross around her neck for health and safety reasons but the same did not apply to a worker for an airline when there were no such concerns.