December 18, 2015

Hospital dress code did not breach article 9 ECHR

The Claimant was a Muslim women engaged under a fixed term contract as a social assistant in the psychiatric unit of a French hospital. She wore a head scarf at her interview which did not obstruct her face. She continued to wear the head scarf working and she was involved in liaising between patients, the hospital and social services. When her contract expired the hospital informed her that it would not be renewed because, in breach of hospital rules, she had refused to remove her head scarf, the wearing of which had cause complaints from patients.

When the Claimant brought a claim she was initially unsuccessful but on appeal, the Appeal Court took the view that the real reason for the non-renewal was not just a breach of the dress code that applied to all public service workers but the fact that her wearing the head scarf was a visible manifestation of her religious belief. The Appeal Court quashed the hospital’s decision; but the hospital made the same decision again and confirmed the non-renewal of her contract making it clear that the reason was her religiously motivated insistence on wearing the head scarf at work.

The Claimant brought a second set of proceedings challenging the non-renewal of her contract but this was rejected, as were her two appeals so she eventually went before the European Court of Human Rights.

Yet again her complaint was rejected, albeit the European Court accepted that article 9 rights were engaged and there was, on the face of it, an infringement. However it considered that the infringement was justified on the basis that it had the legitimate aim of protecting the rights and freedoms of others having due regard to the principle of secularism and public service users rights to receive services free from discrimination.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.

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