Legal coverageCan employers ban hijabs in the workplace?
Following the controversy over the comments by the ex-editor of The Sun, Kelvin MacKenzie, in relation to a Channel Four news presenter wearing the hijab on air, we have further guidance from the European Court of Justice (ECJ) on the question of whether and when an employer may ban Muslim employees from wearing Islamic head coverings in the workplace.
The issue is particularly controversial in France where there’s a strong secular tradition which frowns on overt displays of religious symbols in public. In the case of Bougnaoui v Micropole SA, the ECJ was asked to rule on a ban imposed by a French company on an employee wearing the hijab, a headscarf that overs the head but leaves the face exposed, when visiting clients of the business.
The ban was imposed after a client of Micropole complained after Ms Bougnaoui, a practising Muslim, visited their premises wearing a hijab. Ms Bougnaoui complained of discrimination but was unsuccessful in her claim before the French courts, who 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 referred to the ECJ where the Advocate General (AG) has issued an opinion in advance of a full hearing of the case. In her opinion, the AG concluded that such a ban constituted unlawful direct discrimination and that Ms Bougnaoui had been treated less favourably.
A ban on the wearing of 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. That was not the case here.
The opinion of the AG is simply advisory at this stage and it is possible that the ECJ could take a different view of the case at a full hearing. Indeed, in another similar case due to proceed to a full hearing, a different AG took a contrasting view that a ban on wearing a headscarf could be justified by a general policy of prohibiting any religious symbols in the workplace.
However, even were the ECJ to find that such a ban was justified in this case, it is unlikely to change significantly the position under current UK discrimination law. The ‘genuine occupational requirement’ defence under UK law is very narrowly drafted and can only be utilised in certain circumstances: for example, for reasons of decency or privacy where an employee of a specific gender is appropriate, or for reasons of authenticity as might be the case in respect of, for instance, waiters at a Chinese restaurant.
That is not to say that there are never circumstances where an employer might not legitimately object to employees wearing clothing or head coverings even if these are religious in nature. Recent examples where this has been held justified included a nursery objecting to a Muslim employee wearing a full length jilbab where it was considered a tripping hazard and a teacher prevented from wearing a full veil where this would have impacted on her interaction with the students in the classroom.
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.
One suspects that this is not the last that we will hear about this particular issue.