Politicians may want a national debate on the wearing of veils in public institutions by Muslim women, but what if one of your employees insists on wearing a niqab? Are you able to say no?
Retailers can face a real conundrum if faced with such a demand. 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.
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. Reasons which might succeed may vary from those based upon health and safety, to those which are about brand identity or image. Health and safety grounds are likely to provide strong support for a ban as would accordance with food standards, but other reasons are considerably less clear-cut.
Any dress code which says staff cannot wear a veil will be capable of being discriminatory on the grounds of religion or belief. However, this is indirect discrimination which is important because it means that it can potentially be justified by the employer. The legal test is whether the organisation’s approach is a proportionate means of achieving a legitimate aim. So what’s your aim and have you applied the rule no further than you have to?
The merits of justification will vary between different types of retailers, and even between roles for the same organisation. The only UK case which provides us assistance in knowing where retailers can draw the line involved justification based upon the need for communication and a teaching assistant. 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 there was not the optimum communication required. Similar arguments may succeed for retailers but only if it is genuinely the case that such communication is vital to the employee’s role. This justification argument will only potentially succeed where the importance of staff-customer communication can genuinely be demonstrated.
You are well advised to have thought-through this decision in advance and to include it in a national policy, possibly with clear guidelines for the roles to which it may apply. Do not have local managers making ill-thought through decisions or being pressurised into agreeing. Allowing it in one store, may undermine a ban in another.
It is important that you do not engage in a debate with the employee about the extent to which the wearing of the niqab is required. The legal protection to freedom of religion means that if that individual’s dress is a manifestation of their own religious belief, that is protected irrespective of the extent to which that view is shared with others. In practice the one thing which can often antagonise managers is when someone who has adhered to a policy for some time then insists on dressing differently. However freedom of religion includes the freedom of an individual to change their religion or the way in which they manifest their beliefs. The business must focus on the reason for the rule and not the manager’s view of the person making the request.
The most difficult question is whether you can justify a no face-covering rule as part of a broader brand-focussed dress policy, such as for example the requirement that sales staff wear only clothes that you sell. 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 niqab test case involving a retailer, whether this may be used with any certainty remains unknown.
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 customers. However if you wish to ensure that staff adhere to rules on dress which do not allow them to cover their face, you may legally be able to do so. However as this is determined on a case-by-case basis, such an approach may lead to expensive and time-consuming legal challenge with unwanted publicity.