To Burka or Not To Burka?

September was an interesting month for what is becoming a topic of national interest – when, if ever, is it acceptable to ban full-face veils?

During September, Judge Peter Murphy, ruled that a Muslim women was permitted to stand trial wearing her full-face veil, but that she must remove it for the purposes of giving evidence. He said; "The ability of the jury to see the defendant for the purposes of evaluating her evidence is crucial." This seems like a sensible view to me, but what about seeing her reaction to the evidence of other witnesses? Perhaps this is what Judge Murphy was referring to when he later described full-face veils as the “elephant in the Court Room”.

In the same week, a Muslim student attempted to enrol for an A-level course but was told that it was the College’s policy not to allow the “niqab” she was wearing because of fears over campus security. Birmingham Metropolitan College’s principal and chief executive Dame Christine Braddock originally justified the policy by banning the veil alongside hoodies, hats and caps. She suggested all should be removed to allow ease of identification by the security guards who patrol the premises and entrances.

The College later performed a u-turn in the face of wide spread media attention and protest. Students at the College will still be required to show their faces when entering the premises for the purposes of identification, but the College accepted that “we will modify our policies to allow individuals to wear specific items of personal clothing to reflect their cultural values.”

My view, is that it is a matter of striking a balance between those scenarios where there is a genuine requirement to see someone’s face (such as when giving evidence, for the purposes of identification, and in some cases teaching) and not restricting someone’s freedom. This also appears to be the approach adopted by the British Courts and Tribunals, where previous to these latest developments we have seen a decision in the favour of a school who insisted that a Muslim teacher remove her full-face veil when teaching students. However, this is definitely not a case of one size fits all; a different school based in a different location, within a different community, with different religious values may have resulted in a different decision.

The position in Britain can be viewed in stark contrast to the position in France where a law has been passed that prohibits face covering in public. Anyone who breaks the law is liable for a €150 fine or a period of “citizenship training”. As you can imagine, the ban sparked protests throughout the world, but this has not stopped police in France implementing the ban since 2011.

While I can understand the need for identification in particular sites such as courts and schools, a blanket ban on concealing one’s face in public appears a step too close to Orwell’s Big Brother. I cannot see Britain following the French lead anytime soon.

The message to employers is to assess each case on its own facts and to stay well clear of blanket bans. If it is genuinely necessary for an employee’s face to be uncovered, it is sometimes possible to introduce a rule restricting the covering of one’s face. The key word however is “restricting” – while it may be necessary for an employee’s face to be uncovered for a particular task such as identification or for effective communication, this does not mean that it is safe to introduce a full-face veil ban for the whole of an  employee’s employment.

If you require further advice with regard to the issues discussed in this article or any other employment law matter, please call either James Twine on 01752 292351 or Eoin Fowell on 01752 292350.