Following the controversy over comments from ex-editor of The Sun, Kelvin MacKenzie, in relation to a Channel Four news presenter wearing a hijab and cases now reaching the European Court of Justice, Law At Work’s director of legal services Donald Mackinnon looks at whether employers can ban employees from wearing Islamic head coverings.
The topic of hijabs, a headscarf covering the head but not the face, in the workplace is particularly controversial in France where there is a strong secular tradition which frowns on overt displays of religious symbols in public. In the case of Bougnaoui v Microploe SA, the European Court of Justice (ECJ) was asked to rule on a ban imposed by a French company on an employee wearing the hijab when visiting clients. This case is the first time the ECJ has considered whether restricting the wearing of the Islamic headscarf at work could amount to religious discrimination. The ban was imposed after a Microploe client complained after Ms Bougnaoui, a practising Muslim, visited their premises wearing a hijab. Ms Bougnaoui complained of discrimination but was unsuccessful as the French courts held that her dismissal, following her refusal to remove the hijab, was fair as it was based on a “genuine and serious” reason.
The matter was then referred to the ECJ, where the Advocate General (AG) has issued an opinion in advance of a full hearing. In her opinion, the ban constituted unlawful direct discrimination under the Equal Treatment Directive and that Ms Bougnaoui had been treated less favourably. A ban on wearing the hijab (or other types of Islamic head covering) would only be lawful if based on a genuine occupational requirement and the ban was no more than what was absolutely necessary to undertake the work in question.
The opinion of the AG is simply advisory and it is possible that the ECJ could take a different view at a full hearing. Indeed, in another similar case due to proceed to a full hearing, another AG took a contrasting view, that a ban on wearing an Islamic headscarf could be justified by a general policy of prohibiting religious symbols in the workplace. However, even if the ECJ were to find such a ban justified, it is unlikely to significantly change the position under current UK discrimination law. The parameters of the ‘genuine occupational requirement’ defence under UK law is very narrow and can only be utilised in certain circumstances; for example, for reasons of decency where an employee of a specific gender is appropriate, or for reasons of authenticity for instance in the case of waiters at a Chinese restaurant.
In the UK, however, there have been circumstances where employers have been held as legitimately banning employees from wearing Islamic clothing. This, included a nursery objecting to a Muslim employee wearing a floor length dress called a jilbab, as it was considered a tripping hazard, and a teacher prevented from wearing a full veil where it was believed it would impact on her interaction with students. What the defence does not cover, however, is a ban based upon the objections of clients or a general prohibition on any religious symbols or clothing in the workplace.
The issue of an employer’s right to control how staff dress and look at work versus an employee’s right to wear visible symbols of their religious belief continues to be a controversial and vexed issue in the workplace. This is beginning to be seen in the number of cases which are reaching employment courts, both here and abroad. However, it is vital that employers continue to abide by the legal system in place in the UK which affords a ban on religious clothing, such as hijabs, only where there is a genuine case for it, not where there is pressure from clients or staff.