Kemi Badenoch has said that bosses should have the right to ban employees from wearing the burka in the workplace. In a speech on Friday, the Tory leader says that she ‘has strong views about face coverings’ and would not allow people into her constituency surgeries if they wore face veils.
But how would this work in practice? Could employers ban the burka, or would this be considered discrimination?
Kate Palmer, Employment Services Director at Peninsula, says, “Workplace dress codes can often clash with an employee’s religious beliefs where an employee is not permitted to wear religious items, such as a crucifix or headscarf.
“There is some legal precedence in this area. In the case of Azmi v Kirklees Metropolitan BC, a teaching assistant claimed discrimination after the school refused to allow her to wear a niqab that covered her whole face, except her eyes. Aishah Azmi interviewed for the role and started work wearing a black tunic and headscarf, with no face covering. She later requested to wear the veil; the request was declined as the school found that children did not engage as well with Mrs Azmi when she was wearing the veil, and this impacted on her effectiveness in the job. The Employment Appeal Tribunal (EAT) dismissed her claims for direct and indirect religious discrimination and harassment.
“There have also been several rulings in European courts, most recently in 2021 where a German court found that companies could restrict employees from wearing religious symbols, including the headscarf, as part of a broad ban on ‘any visible form of expression of political, philosophical, or religious beliefs in the workplace.’
“When it comes to HR and employment law it is key for employers to act in a non-discriminatory manner, including when it comes to employee appearance.
“It is reasonable for employers to have a dress code, setting out the standards that they expect in their business. It’s important that the dress code is non-discriminatory and considers the nine protected characteristics under the Equality Act 2010. So, it should cover basic rules around standard of dress, such as no jeans allowed, or smart footwear must be worn, rather than discriminatory language i.e. women must wear high heels.
“The dress code should be clearly outlined in a policy, so all employees are aware of what is and isn’t acceptable in their workplace.
“In some professions, customer-facing and non-customer facing employees may have different standards of dress code set out within the policy. Case law in the area of face coverings is predominantly based on teachers. Whether it translates to a shop assistant, for example, would depend on the facts of the case. The key part here is that the requirements are reasonable and set out to achieve a legitimate aim.
“For example, it could be considered permissible for a dress code policy to require employees’ faces to be visible in customer / client facing roles. Wording it in this way would include non-religious face coverings such as masks, balaclavas, etc. not just the burka, and, importantly, employees would be able to wear religious coverings where their faces are visible, such as the hijab or turban. Be aware that if you ban one form of religious expression, such as a burka, you will also have to look at other religions, to avoid claims that you’re treating one religion less favourably than another.
“While a policy such as this may not be directly discriminatory, it could, however, potentially be indirect discrimination as it is more likely to affect a specific group of people with a protected characteristic. You would have to demonstrate that implementing a specific restriction or policy on face coverings was a proportionate way of achieving a justifiable aim in order for it to not to be considered discriminatory.
“Employers are strongly advised to take appropriate advice before implementing a workplace dress code which prohibits the wearing of religious items, and to particularly consider if there is a genuine need for the prohibition and whether or not it applies equally to all employees.”
