1
Religion, Children and Employment:
The Baby Loup Case
Abstract:
The aim of this article is to offer a systematic analysis of the French Cour de cassation’s plenary Chamber final
decision on the Baby Loup case in which it was held that a private nursery had lawfully required one employee
to remove her jilhab at work, in accordance with the general religious neutrality requirements contained in the
nursery’s policy. The article examines the decision in light of ECtHR and French domestic legal requirements.
First, I argue that laïcité –rightly– held to be irrelevant still unduly taints the reasoning. As a result,
proportionality and anti-discrimination provisions are not properly applied. Secondly, I compare and contrast the
decision to recent ECtHR cases, notably to Eweida and Others v UK. I argue that a Baby Loup-type restriction
does not meet ECHR standards. Besides, the margin of appreciation, recently used by the ECtHR to save the
French ban on the full-covering of the face in the SAS case, is unlikely, as will be demonstrated, to come into
play in a Baby Loup context.
INTRODUCTION
On 25 June 2014, the French Cour de cassation in its plenary Chamber decision ruled that a private nursery
known as Baby Loup had lawfully required one employee to remove her non-face covering Islamic jilhab at
work,
1
in accordance with the general religious neutrality requirements contained in the nursery’s policy.
2
The
decision, which put an end
3
to six years of litigation, follows four prior decisions on the case. The first two
decisions ruled in favour of the nursery: both the employment tribunal
4
and the Court of appeal of Versailles
5
1
The employee wished to wear a jilbab, that is a long coat garment covering the whole body and the hair but leaving the face visible.
Leaving the face visible, the jilhab would not fall under the French 2010 Law (Loi no 2010–1192, JO 12 October 2010, 18344) which was
passed to prohibit full-face-covering garments in all public spaces, including the workplace if it is open to the general public.
2
Cass Ass Plén 25 June 2014, (2014) Rec D 1386.
3
The issue could however be raised again before the European Court of Human Rights. See reporting the employee’s intention to challenge
the Plenary Cour de cassation decision in Strasbourg, http://www.huffingtonpost.fr/2014/06/25/cedh-vincent-lambert-affaire-baby-loup-
presentation-institution-europenne_n_5526082.html [accessed 27 March 2015].
4
Conseil des Prud’hommes Mantes-la-Jolie 13 December 2010, (2011) Rec D 85 and (2012) Rec D 904, Comments by J Porta.
5
CA Versailles 27 October 2011, (2012) Revue de Jurisprudence Sociale 106.
2
had –for different reasons–
6
upheld the employee’s dismissal. However, following a referral
7
to the Cour de
cassation, the outcome temporarily shifted in favour of the employee. In 2013, the Social Chamber of the Cour
de cassation held that general religious neutrality duties could not be imposed by a private employer.
8
Notwithstanding the absence of a system of precedent in French procedural law,
9
the 2013 Cour de cassation
decision should have sealed the debate. Albeit not legally binding, Cour de cassation decisions are usually
followed by lower courts.
10
Unexpectedly in this case, the Court of appeal of Paris,
11
to which the case was
remanded, did not however apply the 2013 ruling. The 2013 Social Chamber of the Cour de cassation had held
that general religious neutrality requirements could not be imposed throughout the nursery. The 2013 decision
thus emphasized the strong divide that exists in France between private agents, who are entitled to the protection
provided under the French Employment Code and public agents who, as representative of the State, are bound
by special duties.
12
The absence of religious symbols in France is regarded as an emblem of a state
philosophy—to be reflected in key national institutions and respected by public agents.
13
The separation
between state and religion, as construed under the French conception of laïcité, thus imposes a duty of restraint
on public agents.
14
However, as the Cour de cassation held in its 2013 decision, such reasoning cannot be
extended into the private sphere to restrict individual freedoms enjoyed by private employees. A private
employer could not therefore, according to the 2013 Cour de cassation decision, avail himself of the
requirements of laïcité in order to circumvent the protection against discrimination in the workplace. Swapping
legal basis and relying on provisions not discussed before the Cour de cassation in 2013, the Court of appeal of
Paris held that, on the facts, the restrictions on the employee’s rights were justified by the laïc ethos which the
nursery was allegedly promoting.
15
Following an inevitable further referral, the Cour de cassation in plenary
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According to the employment tribunal, the nursery’s activities could be characterized as a public service hence triggering the application of
laïcité and general religious neutrality requirements. In contrast, for the Court of appeal of Versailles, religious neutrality requirements were
mandated by the nursery’s mission: offering care to young children.
7
The term ‘referral’ is used rather than ‘appeal’ because Court of appeal decisions in France can only be challenged on points of law. The
functions of the Cour de cassation are primarily to review the legal basis of decisions reached by the Court of appeal, rather than to act as a
third level of appeal on the merits. For an explanation in English of the French court system, see J Bell, S Boyron, and S Whittaker,
Principles of French Law (OUP 2
nd
ed 2008), chapter 2. Adde, J-L Aubert, ‘La Distinction du fait et du droit dans le pouvoir en cassation en
matière civile’ (2004) Rec D 2239.
8
Soc 19 March 2013, (2013) Rec D 962; Opinion B Aldigé at 956; Comments J Mouly at 963 and J Porta at 1026.
9
See by contrast, reaffirming the importance of the adherence to the doctrine of precedent in English Law, Supreme Court 3 November
2010 Pinnock v Manchester City Council [2010] UKSC 45.
10
P Deumier, ‘La Doctrine de la Cour de cassation : opinion ou précédent ?, observations sous Cass Com 8 novembre 2005, Bull IV n 219,
235 et Cass Soc 13 septembre 2005, Bull V n 253, 222’, (2006) 1 RTC 73.
11
CA Paris 27 November 2013, (2014) Rec D 65, Comments by J Mouly.
12
See for further comments and analysis on the divide between private and public agents, infra section B.
13
Myriam Hunter-Henin, ‘Why the French Don’t Like the Burqa: Laïcité, National Identity and Religious Freedom’ (2012) 61 ICLQ 1, 9.
14
See CE avis 3 May 2000 Mlle Marteaux, (2011) RFDA 141, Conclusions R Schwartz.
15
The Court of appeal of Paris put laïcité back into the equation on the basis of article 4(2) of the Council Directive 2000/78/EC of 27
November 2000 which allows churches, religious associations or communities as well as philosophical and non-confessional organizations
to promote a special ethos. Staff employed by these institutions may legitimately be expected to show a certain degree of allegiance to the
ethos promoted by the employer’s institution even at some cost to their individual freedom to manifest differing beliefs. See Official Journal
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Chamber
16
reached a final decision in 2014. According to the 2014 decision, the Court of appeal of Paris had
erred in its choice of legal basis but had nevertheless reached the correct outcome. Laïcité, confirmed the
plenary Chamber, was not applicable. However, it added, a general ban could still meet legal proportionality and
anti-discrimination requirements. Following the Court of appeal of Paris’ findings, the Cour de cassation then
went on to rule that in a small nursery where all members of staff came into contact with children, concerns for
children’s freedom of conscience could warrant a general obligation of religious neutrality. Moreover, the Court
did not think it necessary to examine whether the restriction amounted to discrimination on the ground of
religion presumably because, adopting the Procureur général’s non legally binding opinion,
17
the employee
concerned was still free to hold her Muslim beliefs. The Court of appeal of Paris’ conclusion that the dismissal
had been fair and justified was consequently upheld.
The case is interesting in many respects: it illustrates the legal complexities underlying religious claims
in employment contexts and the intertwining of various layers of norms that are potentially applicable.
18
Freedom of religion in the workplace may be covered by Council Directive 2000/78/EC of 27 November 2000
(thereafter the Directive) establishing a general framework for equal treatment in employment and occupation.
19
It will also fall under the ambit of article 9 of the European Convention on Human Rights (thereafter ECHR)
which guarantees everyone the right to hold and to manifest religious beliefs. Both provisions are directly
applicable before French national Courts. The former was entrenched into the French Employment Code, under
article L 1321-3, by the French law of 27 May 2008
20
and has thus become part of French domestic law. The
latter is routinely raised by French litigants against French Acts of Parliament. On the basis of article 55 of the
French Constitution whereby regularly ratified international Treaties are directly applicable,
21
French Courts
regularly review the compatibility of French legislative provisions with ECHR requirements and set aside any
provision deemed to be conflicting.
22
Besides French courts interpret French domestic law in a sense that is
L 303, 02/12/2000 P. 0016, available at http://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=CELEX:32000L0078 accessed 2 October 2014
accessed 2 October 2014.
16
In such rare instances of two consecutive deferrals to the Cour de cassation in the same case on the same grounds, the second deferral is
necessarily examined in plenary chamber. The decision of the plenary chamber is then final and binding on lower courts. See J Boré and L
Boré, La Cassation en matière civile (Dalloz 2003).
17
http://www.courdecassation.fr/IMG/Avis_PG_pleniere_140625ano.pdf accessed 25 March 2015.
18
See T Lock, ‘An Additional Protective Layer: The Case of Religious Discrimination in the United Kingdom and Germany’ (2013) 38(5)
ELRev 655.
19
.Supra (n 15).
20
Loi n 2008-496 of 27 May 2008 portant diverses dispositions d’adaptation au droit communautaire dans le domaine de la lutte contre les
discriminations (Act Implementing EU Law Anti-Discrimination provisions), available at
http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000018877783 accessed 24 September 2014.
21
According to article 55 of the French Constitution, direct effect of international treaties is subject to a condition of reciprocity. But this
condition does not apply to treaty on human rights. See F Sudre, ‘La Dimension internationale et européenne des libertés et droits
fondamentaux’, in R Cabrillac, M-A Frison-Roche & T Revet, Libertés et droits fondamentaux, (Dalloz 18th ed 2012), 35.
22
Such review has been carried out by French private law courts since the important decision of Cass Civ 24 May 1975 Jacques Vabre,
(1975) Rec D 496, Conclusions Touffait. The Jacques Vabre case deals with a provision of the EC Rome Treaty but its reasoning can be
(and was indeed) extended to the European Convention of Human Rights. Similar review has been carried out by French administrative law
courts since the decision of the French Conseil d’Etat of 20 October 1989, (1989) Rec Lebon 108243.
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compatible with ECHR requirements.
23
Yet, as will be shown below, neither anti-discrimination or religious
freedom requirements were properly applied or correctly construed by the French Cour de cassation in its final
2014 Baby Loup decision. As well as sitting at the crossroads of several legal regimes (anti-discrimination and
human rights protection frameworks) and of several legal orders (EU, Council of Europe and national orders),
religious claims in employment contexts are often emblematic of constitutional values which touch on the
specificities of national Church/State arrangements and legal traditions. Through the concept of margin of
appreciation granted to Member States by the ECtHR
24
or the respect for national identities, under article 4(2) of
the Treaty of the European Union,
25
both the ECtHR and the Court of Justice of the European Union (thereafter
CJEU) will usually shy away from encroaching onto deeply felt constitutional values. However, as will be
demonstrated below, no such core values are at stake in Baby Loup.
The aim of this article is to offer a systematic analysis of the Baby Loup decision in light of ECHR and
of French domestic legal requirements. First, I will carry out an internal critique of the decision. It is submitted
that the Baby Loup 2014 decision places an undue burden on religious (and especially female Muslim)
employees working in the childcare sector in France. Secondly, I will examine the Baby Loup decision in light
of ECtHR case-law. It will be argued that a Baby Loup-type restriction would not meet ECHR standards.
26
I AN INTERNAL CRITIQUE
The Baby Loup 2014 decision superficially seems to follow orthodox French legal reasoning: the Cour de
cassation resists the temptation to inflate laïcité beyond its usual remit and confirms instead the applicability of
French employment law provisions. However, on a closer look, laïcité, despite having been formally set aside,
still taints the Cour de cassation’s reasoning. As a consequence, proportionality and anti-discrimination
protections are summarily dealt with and religious neutrality firmly guaranteed. It is submitted that the
restriction imposed by the nursery’s policy should on the contrary have been held to amount to a
disproportionate and discriminatory restriction on individual religious freedom. The reason for the Cour de
23
English Courts are expected to do likewise under section 3 of the Human Rights Act (thereafter HRA) whereby, ‘1) So far as it is possible
to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention
rights’. Moreover, under section 6 HRA, Courts, as public authorities must not act in a way which is incompatible with a Convention right.
However contrary to French courts, English Courts have not been persuaded by their status under section 6 HRA to absorb Strasbourg
principles directly into private law. See J Wright, ‘A damp squib? The impact of section 6 HRA on the common law: horizontal effect and
beyond’ (2014) PL 289.
24
For an illustration, see See ECHR 18 March 2011 Lautsi v Italy (App no 30814/06), 68.
25
See A Von Bogdandy and S Schill, ‘Overcoming Absolute Primacy: Respect for National Identity under the Lisbon Treaty’ (2011) 48
CMLRev 1417.
26
For reflections on the case in light of EU requirements, see Myriam Hunter-Henin, ‘Living Together in an Age of Religious Diversity:
Lessons from Baby Loup and SAS’ (2015) OJLR 1, 11-13, 18.
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cassation holding otherwise lies in the unconvincing abstract assumptions underlying its reasoning. The Cour de
cassation relies on the assumption that the wearing of ostentatious religious symbols by nursery assistants is
necessarily harmful to the young children attending the nursery. A concrete evidence-based assessment of the
facts would have led to a more rigorous and fairer treatment of the case.
A Disproportionate and Discriminatory Restriction
According to the Cour de cassation’s final 2014 decision on Baby Loup, the case fell under private employment
law. It thus rejected the views of the employment tribunal, which had brought the case under the public law
remit by characterizing the nursery’s mission as one of public service, and of the Court of appeal of Paris, which
had sought to justify general religious neutrality duties by referring to the laïc ethos which the nursery was
allegedly promoting. The Cour de cassation held in 2014 that the case was irrefutably a purely private law case.
As such private law employment provisions applied and in particular articles L1121-1 and L1321-3 of the
French Employment Code. According to the former, any restrictions onto individual freedom in the workplace
must be justified in light of the employee’s task and be proportionate to the aim pursued. Moreover, according
to the latter article L1321-3, incorporated by the French law of 27 May 2008,
27
in pursuance of the Directive,
28
restrictions of a discriminatory nature must be justified by an essential requirement and be proportionate to the
goal sought. The issue was therefore whether the contested provision contained in the nursery’s policy complied
with those articles. The policy stated that ‘rights to freedom of conscience and freedom of religion recognized to
staff members could not be invoked to undermine the principles of laïcité and neutrality which applied across all
of the nursery’s activities both within the nursery’s premises and outside, on visits organised for the children’.
The two Cour de cassation decisions –the Social Chamber decision of 2013
29
and the plenary Chamber
decision of 2014–
30
differ radically in their assessment of the proportionality of the restriction. For the Social
Chamber, a general requirement of neutrality is not proportionate because of its wide ambit –all staff, without
any distinction, are affected by the prohibition which moreover applies across all of the nursery’s activities and
in all of the nursery’s premises. Furthermore, because this requirement is more likely to affect Muslim women,
it constitutes an indirect discrimination. This, I contend, was the correct analysis and logical conclusion to
reach.
31
The Cour de cassation in 2014 however thought otherwise: the restriction, despite its wide scope within
27
Supra, (n 20).
28
Supra (n 15).
29
Supra (n 8).
30
Supra (n 2).
31
See also, F Laronze, ‘Affaire Baby-Loup: l’épuisement du droit dans sa recherche d’une vision apolitisée de la religion’ (2014) Droit
social 100; M Peyronnet, ‘Baby-Loup: passage en force des juges d’appel’, (2013) Rec D Actualités.