Currently, however, no uniform policy is adhered to by British hospitals and it is crucial to consider whether a ban of hospital staff employees wearing the niqãb is in fact legal.
The risk is that under the Equality Act 2010 such dress codes are potentially indirectly discriminatory, as they amount to a provision, criterion or practice '(PCP') that puts or would put persons of a certain religion or belief at a particular disadvantage (Sections 10 and 19, Equality Act 2010). The hospital, as the employer, would need to show that the PCP is a proportionate means of achieving a legitimate aim.
Some recent judgments have provided direction as to the Courts and Tribunals' interpretation of the current law. In Eweida and others v United Kingdom, the European Court of Human Rights ('ECtHR') ruled the UK breached a Christian woman's right under Article 9 of the European Convention of Human Rights to manifest her religious belief (British Airways had prevented Eweida from wearing a cross owing to its uniform policy).
In contrast, the ECtHR rejected a complaint from Mrs Chaplin, a nurse banned from wearing a cross on hospital wards due to health and safety (Chaplin v Royal Devon & Exeter NHS Foundation Trust); the policy was objectivity justified on grounds of health and safety.
Moreover, in Azmi v Kirklees Metropolitan Borough Council it was held that the employer's instruction to Mrs Azmi to remove her niqãb when working as a bilingual support worker was a proportionate means of achieving the legitimate aim of providing the best quality of education.
The Equality and Human Rights Commission's ('EHRC') Code (EHRC Statutory Code of Practice and see also the ACAS Guide for employers) provides useful examples in its guidance: a hairdresser refusing to employ stylists who cover their hair, believing it important for them to exhibit their haircuts, may be indirectly discriminating unless the criterion can be objectively justified.
An employer who introduces a blanket ban of 'no jewellery' policy because they do not like body piercings, may discriminate against a Sikh worker who wears a Kara bracelet as an integral part of her religion. Before implementing such policies, employers should consider whether dress codes can be objectively justified to avoid indirect religious discrimination.
The decisions in Azmi and Eweida suggest that a policy excluding the niqãb may be objectively justified as a proportionate means of achieving the legitimate aim of communicating effectively with patients, however this may only be justifiable for frontline staff working with patients; blanket bans are more likely to be indirectly discriminatory and employers should assess individual cases and accommodate staff needs where possible.
A fair balance should be struck between the competing interests of the individual and the community as a whole.
If a hospital policy was found to be objectively justifiable, other industries may feel confident in introducing their own uniform policies, but they should take care: further judgments are needed to provide guidance as to where the line is to be drawn.
It is arguable that other industries, outside of the core industries of health and education, such as retail or tourism, would find it more difficult to justify such policies, but this remains to be seen.
Stephen Moore partner and head of employment at Ashfords Solicitors
