Ban the Burqa?
Last week, Downing Street confirmed that the Prime Minister has said that he would support schools that wanted to ban the veil. This week it has been announced that at least 17 NHS hospitals have banned front line staff from wearing the veil. The Government has ordered a review of all health service policies on workers’ uniforms with the aim of drawing up clear rules to ensure that communication with patients is always given priority over the right of a nurse or doctor to wear a veil.
At present, the discussions about banning veils in the workplace appears to be confined to certain sectors – councils, hospitals and schools – but there others who wish this to measure to go further. The Prime Minister’s spokesperson has said: “The Prime Minister doesn’t believe Parliament should legislate on what people do and don’t wear on their local high street. Nonetheless, that is not incompatible with institutions having dress codes. Schools are an example. It is for institutions to make this decision.” It is thought that any ban on the wearing of a veil is very likely to face legal challenges and in this article, we look at existing case law to see how this issue may be treated by an employment tribunal.
In the 2007 case of Azmi v Kirklees Metropolitan Council, Mrs Azmi claimed that she had been directly discriminated against on the grounds of religion and belief under the Employment Equality (Religion or Belief) Regulations 2003 (Religion or Belief Regulations) as she had been told she could not wear a veil whilst teaching. Her case was dismissed as she had failed to establish a prima facie case that she had been less favourably treated than a comparator in similar circumstances – a non-Muslim employee who had covered their face. The tribunal found the employer in this case had a legitimate aim in giving the instruction to remove the veil and the means of achieving it were proportionate.
It is easy to look at the suggestion of requesting employees not to wear veils as being discriminatory as the reason given for wearing them is, in the main, a religious one. However, there are arguments about whether the Koran really does dictate the wearing of the burqa or whether it is simply a display of extremism or a non-religious cultural practice. If we take away the religious element, we are simply left with dress codes which most workplaces have. Such policies can outline what haircuts are acceptable, they can dictate what jewellery can be worn, what footwear is permitted etc. Therefore, this is not such a new idea although its connection to religion does make it more controversial.
A 2008 case, Eweida v British Airways plc, discussed whether BA’s policy of not permitting a Christian employee to wear a visible cross constituted indirect discrimination. The Employment Appeal Tribunal upheld the tribunal’s initial finding that the employee was not discriminated against as the concealment of the cross was part of its uniform policy. It was not a religious requirement to wear the cross and Miss Eweida was unable to produce sufficient evidence to suggest that BA’s policy requiring non-uniform items to be concealed placed Christians “at a particular disadvantage” again within the meaning of the Employment Equality (Religion or Belief) Regulations 2003. However, for Miss Eweida, this was not enough to establish the necessary degree of group disadvantage to give weight to her indirect discrimination claim.
France has already banned the public wearing of the burqa, imposing substantial fines to those who flout the law. Canada’s Quebec province is currently considering a law that would make it illegal for public employees to wear religious headwear such as burqas and Jewish skull caps along with prominently displayed religious symbols such as crucifixes. The idea is that everyone would be treated more equally as there would be no clothing privileges. Only this week, a judge has made a ruling that the defendant must give evidence without her burqa to conceal her face. It is quite possible that in the near future we could see guidance or even legislation here in the UK outlining how such issues will be dealt with moving forward. However for now, employers should think about dress code policies carefully where such rules encroach on religious grounds because if a religious group is put at a disadvantage due to a dress code/uniform policy, a justification defence may well fail.