Asif Hosein-Shah
Student, Hugh Wooding Law School
For many it is a piece of cloth, but for Muslim women around the world, the headscarf (loosely called “hijab”) represents a crown of religious symbolism of divine worship and obedience to God.
Naturally, in a multi-religious state governed by its own laws, the question arises of whether one is free to practice his/her religion and the degree of practice in society. The simple answer is yes — but not without its limits. The question of religious practice is wide and complex. This article specifically seeks to address the wearing of the hijab in the workplace.
The Constitution recognises specific fundamental rights regardless of religion and guarantees people the right of freedom of religious expression and observance. This binds the State who cannot make laws or policies infringing the right without meeting a high threshold of reasonably justifying such action in a society with proper respect for the individual’s rights and freedoms and attaining a 3/5 majority of parliamentary support.
The State and private companies are also bound by the Equal Opportunities Act. The Act defines discrimination as treating a person less favourably than another on the ground of status. The definition of status includes religion.
The Act states at section 8 that an employer cannot discriminate against a person applying for a job (a) in his arrangements for hiring; (b) in the terms and conditions of employment; and/or (c) by refusing or deliberately omitting to offer employment. For employed people, section 9 states that an employer cannot discriminate against a person employed by him (a) in the terms and conditions of employment; (b) in affording access to opportunities for promotion, transfer, training or any other benefit, facility or service; and/or (c) by dismissing the person or exposing them to any other disadvantage.
Thus, on the face of it, neither the State nor private employers may discriminate against women wearing the hijab in the workplace or expose them to any disadvantage.
However, quite commonly, conflict arises where there is a “Uniform Policy” in the workplace. On paper, the policy seems to be equal in application to all, but most commonly its effect indirectly discriminates against a particular group of people.
In T&T a uniform policy cannot be inflexible or its effect cannot be unreasonable in the exercise of its terms: Mohammed v Moraine (1995) 49 WIR 37. This falls within Commonwealth positions where uniform policies must pursue a legitimate aim and be proportionate to achieving that aim.
It follows that the headscarf itself does not breach a uniform policy where the wearer conforms to the overall standard of the uniform and blends the hijab to match it. Even if the hijab is not compatible with the task, an employer has a duty to attempt to reasonably accommodate the person in another task.
Nevertheless, where religion is necessary in a religious shop or the job involves domestic or personal services concerning the employer’s home, an employer can deny employment to a person on the ground of religion.
In conclusion, does the hijab have a place in the workplace? The answer is most definitely yes, but you must be guided by your own conduct and stay as close to the rules as possible.
• This column is not legal advice. If you have a legal problem, you should consult a legal adviser.