Religious discrimination: can a ban on full face veil be lawful?

Religious discrimination: can a ban on full face veil be lawful?

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Author: Alex Newborough

A judge recently ruled that a Muslim woman on trial for allegedly intimidating a witness could not give evidence unless she removed her face veil.

As the UK becomes more ethnically diverse how can employers juggle the competing rights of those who wish to express their faith in the workplace with the requirements of a secular society?

Background

In the case in question, the defendant initially refused to remove her niqab (a veil which obscures the wearer's face save for a narrow strip across the eyes) because, for religious reasons, she did not wish to reveal her face in front of a man.

In an attempt to strike a balance between the defendant's human rights and the administration of justice in a democratic society, the judge offered the defendant the opportunity to give her evidence from behind a screen so that her face was visible only to him, the jury and the parties' legal representatives. However, the judge was clear that it was crucial for the jury to be able to see the defendant's face in order to properly evaluate her evidence.

Health service faces similar issues

This decision has come against a back-drop of reports that 17 hospitals have introduced bans against patient-facing healthcare workers wearing the niqab and comments from health secretary, Jeremy Hunt, that patients have a right to see the faces of those treating them.

There are concerns that quality of care, including effective patient-staff communication, may be negatively affected where patients are unable to see the face of their doctor or nurse during consultation and treatment.

The law

Under the European Convention on Human Rights (incorporated into English law by the Human Rights Act 1988), everyone has the right to freedom.to manifest their religion or belief in worship, teaching, practice and observance.subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Under the Equality Act 2010, an employer will indirectly discriminate against an employee if it applies a provision, criterion or practice which:

  • puts, or would put, the employee and other persons of the same religion or belief as the employee at a particular disadvantage when compared with members of the workforce who do not share that religion;
  • and which is not a proportionate means of achieving a legitimate aim.

In previous European and domestic cases on this topic:

  • Requiring a bilingual teaching assistant to remove her niqab while teaching in order to ensure full and effective communication and therefore the best quality education for her pupils was not directly or indirectly discriminatory on grounds of religion and belief.
  • The refusal by an airline to allow a member its check-in staff to wear a plain cross as an expression of her faith on the basis that it was contrary to the employer's uniform policy was discriminatory.
  • The refusal by an employer to allow a clinical nurse to wear a crucifix necklace as an expression of her faith on the basis that it was contrary to its uniform did not amount to discrimination. The employer's desire to protect the health and safety of staff and patients was held to be a legitimate aim. Having made reasonable attempts to resolve the matter with the employee, its refusal to permit her to wear the necklace was deemed to be proportionate.
  • The refusal by an employer to allow a prison officer employee to wear a kirpan (a ceremonial dagger, one of the five articles of faith worn by Amritdharis Sikhs) was not directly or indirectly discriminatory. The ban was held to be proportionate and justified by the legitimate aim of protecting the safety of staff and prisoners.

Comment

Employers drafting or reviewing their uniform policy, including considering imposing a ban on any article of faith in the workplace should be clear from the outset about the legitimate aim the ban is designed to achieve. It is advisable to enter into constructive dialogue with employees to explore any possible compromise and to ensure those discussions and the thought processes behind the ultimate decision are clearly documented. This will assist employers in demonstrating that they have taken a proportionate approach to the issue. While each case will always turn on its own facts, being able to show that a thoughtful and balanced approach was taken is likely to be the best defence for any employer seeking to justify such a policy.

About the author

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Alexandra Newborough

Solicitor

03700 86 8434

Alex is an employment law specialist, providing advice on both contentious and non-contentious employment issues to a diverse range of public and private sector clients. Alex's experience includes restrictive covenants & confidentiality, advising on and drafting employment contracts & handbooks, advising clients on Tribunal matters and business immigration.

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