The Department of Health has announced a review into whether NHS staff in England should be allowed to wear full face veils (the niqab).
Ministers have asked the General Medical Council to ensure that staff have “appropriate” face to face contact with patients. Following recent case law on the wearing of religious items, what effect would such a ban have for other employers such as schools, care homes or social services?
The niqab is worn by some Muslim women but is not perceived as a requirement of the faith. Muslims, are protected under the Equality Act 2010. The outlawing of the niqab may amount to indirect discrimination on grounds of religion. Indirect discrimination on the grounds of religion occurs where the employer applies a provision, criterion or practice (PCP) that applies to all, but which puts or would put employees of a particular religion at a disadvantage. An employer could justify a PCP if it can demonstrate that it is a proportionate means of achieving a legitimate aim.
The issue of policies which ban religious items and clothing is very topical following a group of cases taken to the European Court of Human Rights (Eweida and others v UK  ECHR 37). Mrs Eweida pursued a claim for religious discrimination against British Airways for being banned from visibly wearing a crucifix at work. The European Court of Human Rights has recently upheld Mrs Eweida’s claim for a breach of Articles 9 (freedom of thought, conscience and religion) and 14 (enjoyment of rights without discrimination). In the same group of cases, a similar claim pursued by a nurse, Mrs Chaplin, failed because the ban on wearing a crucifix in a hospital environment could be objectively justified on health and safety grounds.
There is case law predating the Equality Act 2010 in which a claim for indirect discrimination was pursued by a Muslim teacher in a primary school who had been instructed not to wear the niqab because it hindered effective communication with children (Mrs A Azmi v Kirklees Metropolitan Council ). The EAT concluded that the instruction to Mrs Azmi to remove her veil whilst teaching did not “target the veil”. It had been issued to achieve a legitimate aim; the provision of the best quality education and it was a proportionate means of achieving that aim.
If employers decide to introduce policies to ban the veil they should carefully consider whether an outright ban would be a proportionate means of achieving a legitimate aim and whether their actions can be objectively justified.