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Q&A: Can we ban the burqa or veil in the workplace?

Following the ECHR's decision to uphold France's ban on women wearing full face coverings in public, Phil Allen looks at the implications for UK…

I’ve seen in the news this month that the European Court of Human Rights has upheld France’s ban on women wearing full face coverings (such as the burqa or veil) in public. Is this a ‘green-light’ to impose a ban in our workplace? What is the position in the UK?

This is a really interesting question. Any action you take to prevent an employee from wearing Muslim religious dress such as the burqa or veil of course has the potential to be controversial. However, you may be able to enforce such a ban as long as it is handled sensitively and carefully thought through.

The French case

In France, a law introduced in 2010 makes it illegal for anyone to cover their face in a public place. While it also includes non-religious face coverings such as balaclavas and hoods, the law has been criticised as unfairly targeting Muslim women. It was challenged by a young Muslim woman (a French citizen of Pakistani origin) who wears both the burqa (a robe which covers the entire head and body) and the niqab (a face covering which exposes only the eyes).

The European Court of Human Rights accepted that the ban specifically had a negative effect on Muslim women and that it interfered with the individual’s right to respect for freedom of religion. However, it concluded that the ban was justified.

It accepted the French Government’s argument that the ban facilitated social interaction and communication. The Court held that the aim of promoting integration in a ‘secular’ society justified the Imposition of a total ban.

The position in the UK

UK law leaves it to each organisation to make its own decision. If you want to say that an employee cannot wear clothing which covers their face, you need to consider carefully why you need such a rule. The reason is all important in determining whether your ban may stand up to a legal challenge.

It is interesting to note that ‘secularism’ is a defined constitutional principle in France. This is not the case in the UK where religion and the state are intertwined. It is unlikely that the wish to present a ‘secular’ image would be sufficient for the UK state, or a UK employer, to justify a similar ban.

Any dress code which says staff cannot wear a veil will be capable of being discriminatory on the grounds of religion or belief. However, such a policy can potentially be ‘justified’ by an employer. The legal test is whether the organisation’s approach is a ‘proportionate means’ of achieving a ‘legitimate aim’.

To justify any ban you should balance the impact of your rule, with the business need identified. If your refusal is purely based upon an undefined organisational preference, your justification won’t stand up to challenge; you will need to be more specific than that. For example, health and safety requirements or the need for clear and effective communication are likely to be compelling reasons.

Other reasons, such as a desire to safeguard ‘brand image’ are less clear cut. In the key European decision on religious-dress, British Airway’s refusal to allow Nadia Eweida to wear a cross was held to be unlawful because the impact this had upon their brand identity was held to be insufficient to merit the ban. However, that Judgment did confirm the legal possibility that brand identity could justify a dress code which excluded certain religion-related dress. Until we have a test case dealing specifically with the wearing of the burqa or niqab the extent to which this principle may be used remains uncertain.

Every case will turn on its own facts. The merits of Justification will vary between different types of employers and even between roles for the same organisation

A UK case-study

The only UK case which gives us any real guidance on this issue involved a teaching assistant in a primary school.
The employer refused to allow her to wear a veil when actually teaching children and this was held to be justified and lawful. Central to this decision was the fact that the employer had limited this ban to the times when the employee needed to interact with pupils. The employer had carefully considered the issue and had concluded that obscuring the face and mouth reduced the non-verbal signals between pupil and adult which meant that optimum communication could not be achieved.

Some practical tips

Think long and hard before imposing a ban.

Is communication vital in your organisation or sector? Why? How specifically would you explain or justify this requirement? If health and safety is your driver, what are the specific risks?

If you want to impose a ban it would be advisable to include it in a national or organisation-wide policy, with clear guidelines for the roles to which it may apply. Consistency is important.

It is important not to engage in a debate with the employee about the extent to which the wearing of a face covering is required. The legal protection to freedom of religion means that if that individual’s dress is a manifestation of their own religious belief, it is protected irrespective of the extent to which that view is shared with others. The focus must be on the reason for the rule.

You could take the view that your business is best promoted by demonstrating diversity. Allowing diverse dress on religious grounds certainly ensures that you are able to appoint the best staff for the job and may demonstrate inclusivity to your clients, customers or service users.

However, if you have genuine business-critical reasons to prohibit the covering of the face, you may be able to impose a ban. If you go ahead, be prepared to be challenged and to rigorously justify your decision.

If you have any further questions about this issue, or any other aspect of discrimination, please speak to your usual Weightmans contact or get in touch with Phil Allen phil.allen@weightmans.com.