Could Kiwi employers ban the hijab?

One Wellington-based employment lawyer weighs in on the recent comments made by a top EU court advisor.

Could Kiwi employers ban the hijab?
Last week, a top EU court advisor said European employers “may be justified” in banning Muslim headscarves but do the comments have any impact on Kiwi bosses? HRM asked industry lawyer Andy Bell for the legal low-down.

“There is a distinct lack of reported Court cases in New Zealand on the issue of religious clothing in the workplace, as most cases appear to be settled privately,” reveals Bell, of Wellington-based Bell & Co. “This makes it difficult to provide clear and precise guidance as to how the legislation is practically applied,” he adds.

While few previous cases address the issue, Bell says there is well-established legislation that can provide valuable guidance to employers.
“The blanket rule in the employment context is that discrimination based on religious practices or beliefs is not permitted,” he told HRM.

“An employee generally cannot be dismissed, retired, or forced to resign due to their religion [and] an employer must also afford employees the same conditions of employment, benefits, opportunities, promotions and transfers of the same or similar qualifications, experience or skills,” he stressed

“Accordingly, the general rule is that an employee cannot be dismissed or otherwise discriminated against in New Zealand as a result of wearing religious clothing in the workplace, such as a headscarf.”

However, Bell – who has over 10 years’ experience in the field of employment law – admits there are some exceptions to the rule.

“Section 28 of the Human Rights Act 1993 requires an employer to accommodate a religious practice so long as any required adjustment of the employer’s activities is not unreasonably disruptive,” he reveals.

“This most likely means that an employer is not required to accommodate religious clothing in the workplace where doing so would cause significant expense, or disruption to business activities. In my view however it would be difficult to preclude the wearing of a headscarf on these grounds.”

Another exception arises in situations where religious clothing may give rise to health and safety issues, says Bell, pointing to a Supreme Court of Canada case in which an employer wasn’t forced to accommodate the religious practices of a Sikh worker.

“The man was ultimately dismissed for failing to wear a safety helmet because it was contrary to his religious beliefs,” explains Bell. “The duty to accommodate this employee was overridden by the role requirement to wear a helmet. The law would likely be applied in New Zealand in a similar manner.”

Bell says New Zealand’s Human Rights Commission also provides some guidance in respect of religious clothing in the workplace.

“The HRC published a brochure in 2011 – ‘Religious Diversity in the New Zealand Workplace’ – which states that an employee’s request to wear a headscarf at work should be considered by the employer in good faith, but where health and safety requirements require an employee to wear protective clothing, the wearing of a headscarf can cause some difficulty,” says Bell.

In the brochure, the Human Rights Commission urges employers to approach any conflicts “with the reasonable expectation of finding a practical and acceptable resolution.”

“This reinforces the position that the right to wear religious clothing in the workplace is not absolute, but should be accommodated where to do so would not cause significant disruption to business activities or raise health and safety concerns,” Bell told HRM.

Putting it simply, Bell says bosses should do their best to accommodate the religious needs of employees and avoid any potential legal complications.

“My recommendation to New Zealand employers is to accommodate religious clothing, such as headscarves and turbans, wherever possible and practicable in the workplace.

“If the employer chooses not to accommodate religious clothing and cannot reasonably justify the decision in accordance with the legislation, it risks sanctions being imposed by either the Employment Relations Authority or the Human Rights Commission,” he warns.

“If the matter is reported to the media, it also risks damage to reputation.”

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