Home > Workplace > Belgium > 2009-12-15 - Court of First Instance of Charleroi, n. RG 09/708/C

2009-12-15 - Court of First Instance of Charleroi, n. RG 09/708/C

Workplace · Belgium · Dress code · School

Dismissal of a teacher in public school for wearing headscarf

Key facts of the case - A public school math teacher working for the Charleroi City schools (subsidized by the French Community) under a temporary contract wants to continue to wear a headscarf on the job for religious reasons.
She has been wearing a headscarf since 2007 when she started teaching math in one elementary school, without any particular difficulty. During 2007, 2008, and 2009, her work assessments were positive. During the academic year 2008/2009 her class was inspected by the French Community.
In September 2009, she was assigned a full-time position, but then a month later she hears her time is spread out in three city schools. She was informed by the principal of her first school that the two principals of the other city schools refuse to let her continue her work while wearing a headscarf. Since then she with much difficulty obtained her schedule but was refused access to the classroom, receiving mo written notice or confirmation.
Her attorney writes to the two schools to inform she will teach starting Monday (after a short work incapacity) She receives a reply from the city council member referring to the principle of neutrality and stating that wearing the headscarf does not respect this principle.
The next day she is again refused entry to the school and no written notice is given to her. The city council of Charleroi takes a decision “prohibiting the teacher –‘as far as necessary’- to wear a headscarf on the job in the three city schools.”

Main reasoning of the court - Urgency of the request is established (teacher has acted quickly after informed about the principals’ attitude).
In summary proceedings, the court looks at the appearance of right and has to balance interests as two possible harms can ensue, one to the teacher if the requested measure is not awarded and another to the city if the measure is awarded.
The court looks into a number of issues: principals’ competency, legality of the city council decision, principle of neutrality of official education, freedom of religion, the teacher’s justified expectations and non-discrimination. Its conclusion is that the request is not founded, practically meaning that the schools can refuse to let the teacher enter as long as she wears a headscarf. (and pending the decision on the merits)
On neutrality: The French community decree of 17 December 2003 with regard to the neutrality of official subsidized schools seeks to guarantee the freedom of conscience of students and requires teachers to “abstain from taking partisan positions towards students in ideological, social, moral or political problems....they have to guide that no religious proselytism or militant religions for or by students takes place under their watch.” (Art. 5) Teachers sign a declaration that they will abide by the decree, including with regard to the respect for the principle of neutrality. The judge argues that “neither the absence of a headscarf ban in the education project in which the teacher was working nor the fact that she swore oath with the headscarf on, frees the teacher with regard to the general obligations derived from the decree.”
The court states that it is true that no text explicitly prohibits the wearing of a headscarf in school. However, it must establish if this “attitude violates the neutrality imposed on all teachers in public education by decree 17/12/2003.”
According to the court, the headscarf is “by nature not discrete, since it imposes itself upon each person who passes by the person wearing it (it is not a discrete sign that can pass unattended).”
It is hard to appreciate the impact and thus say if it violates the neutrality towards students and teachers...but it could be seen by some as a attack on the religious sentiments of certain students even in the absence of actual proselytism, as challenging those who do not wear it. “Wearing of a headscarf by the math teacher is of a nature to complicate for relatively young students the capacity to think or express their opinion with regard to religion. In addition, their parents might see their wish of pluralist reflection limited by the attitude of the teacher who ostensibly and manifestly expresses her adherence to a religion.”
“Thus, the wearing of a headscarf, at first sight, seems to go against the principle of neutrality and the goals sought by this.”
On the freedom of religion: forum externum is subject to restrictions (ECHR art. 9) have to be proportionate. Here balance between the need to protect the neutrality of education and the rights of students and parents versus the teacher who is invoking her won freedom of religion. The measure is justified because of the aim to protect the convictions of students and parents and avoid conflicts within the school.
On the teacher’s justified expectations: the fact that the first principal tolerated the headscarf does not change the fact that there is a duty to be neutral in the official school net. Additionally, this toleration by the principal is without consequence on the current situation of the teacher who is now under a new contract for the year 2009/2010 “with new expectations (multiple sites)” (* see comment below)
On non-discrimination: there is no prima facie violation of the non-discrimination provision in the decree of 12 December 2008 prohibiting discrimination on the basis of religious conviction or philosophy because there is not an issue with the teacher being of the Islamic faith, but merely because she wants to wear a headscarf, and on the basis of a decree of 13 December 2003 that applies equally to all teachers in the official network.

Comment - This is a summary judgment, not on the merits, but one should note that the court goes pretty far stating a position with regard to neutrality. The court seems to be influenced by the French situation and laïcité (even though that term is never used in the judgment) and really seems to go out of its way to find in favour of the city (e.g. the remark about a new contract and new expectations seems far-sought and potentially legally incorrect...)
The court seems to hold a number of conceptions about the headscarf, some certainly contentious, others clearly contradictory with the facts of the case. In particular, a lot of emphasis is set on the wishes of students and parents, but the judgment also shows that the teacher was wearing a headscarf for a number of years, without any particular difficulties and there was no indication that parents and students objected or commented.