Written by: Averroes
(1.0) Introduction
In Europe, two Muslim women in Germany were suspended from their employment since they wore the hijab. Inside court, the Luxembourg-based EU Court of Justice (CJEU) made a ruling based on the case brought by them.
It was decided that companies in the European Union can ban employees from wearing a headscarf under certain conditions as to maintain a neutral image toward their customers. However, after this decision was made, it caused a large disparity between people in Europe which is seen as an attempt to assimilate Muslims. The court reaffirmed the 2017 decision by CJEU that also decided similarly.
Critics claim that this decision countered the 2013 decision in the European Court of Human Rights (ECHR) allowed crosses to be displayed at work. On the contrary, the ECHR is not part of the CJEU, though all EU member states have signed the European Convention on Human Rights.
Both woman only wore her headscarf years after returning from paternal leave. The first woman worked at a special-needs care in a childcare center in Hamburg. The other woman was a cashier at the Mueller pharmacy chain. They were told that it was not allowed and they had to come to work without it or find a different job.
Not just the hijab, the childcare center also banned staffs from wearing other religious symbols, such as the Christian cross and Jewish kippah. Both women were suspended twice and were issued a written warning, which led them to challenge such action in the German courts.
The court then states provides that. it should be weighed on whether the ban corresponds with the genuine need on part of the employer. They should also consider by observing the rights and interests of the employee, inclusively on national legislation on freedom of religion.
Specifically, the court states;
"A prohibition on wearing any visible form of expression of political, philosophical or religious beliefs in the workplace may be justified by the employer's need to present a neutral image towards customers or to prevent social disputes."
However, the court did remarked that it is ultimately for the national courts to decide on the last say if there were any discrimination or not.
(1.1) National European Legal Reactions
There are more than five million Muslims living inside Germany, making them the largest religious minority there. The issue of hijab is a polemic one, as many women there are inspired to become teachers at state schools and trainee judges, but face these forms of discrimination.
In France for instance, their court in 2014 upheld the dismissal of a Muslim daycare worker for wearing the hijab at a private creche which strictly required neutrality in the workplace. Even since 2004, France being the largest host of Muslim minorities prohibited hijab in state schools.
However, other countries in Europe such as Austria in their constitutional court decided that banning girls up to ten years old for wearing the hijab in school was discriminatory.
(2.0) Malaysian experience
(2.1) Public Sector
Simlarly, if we view the Hjh Halimatussadiah Hj Kamaruddin v. Public Service Commission Malaysia & Anor [1992] 2 CLJ Rep 467 , on 23rd February 1973, the Government of Malaysia offered the plaintiff to be appointed as a clerk.
The plaintiff (who wore a purdah which covered her entire body except for a slit at the eyes) is subject to the General Orders, Circulars and other regulations in respect of work, behaviour and conditions of service of officers in the Public Service. It was that on 18th February 1985, the government issued the Service Circular No. 2 1985 (the circular) for government officer dress code.
Clearly, at paragraph 2.2 of the circular provides for the dress code for lady officers to be a particular dress one to be worn when on duty during office hours. The State Legal Adviser through the Pekeliling Perkhidmatan Bil. 2 taun 1975 stressed that those breaching this would be culpable for indiscipline.
Paragraph 2.2 of the circular stipulates;
"National Dress or dress of respective races suitably worn at work. Jeans, slacks, shorts and any attire covering the face cannot be worn when on duty."
Paragraph 2.2.1 of the circular stipulates;
Prohibition for "which covers the face" (meaning, the face must not be covered, the whole face including the eyes, nose or mouth must be exposed)
She was advised to not cover her face with the purdah, but the plaintiff argued that as a Muslim she was required by the Quran and hadith to cover her face and other parts, except for the palms, fingers and soles on the feet. She referred to verse 30 and 31 of Surah An-Nur.
The Dato' Mufti Wilayah Persekutuan Dato' Haji Abdul Kadir b. Talib as an expert witness agreed that women are required to cover their modesty, but in Malaysia is not a custom or practice. Only Arab countries follow as such, and nowhere in the Quran mentions anything related to the purdah.
However, the court decided that as under article 11 of the Federal Constitution, even as Malaysians having the righto religious beliefs, article 11(5) provides for the exception that forbids any act which may lead to public disorder, affect public health or public morality.
Since she wore a purdah, the conditions for the dress code made by the government was not illegal as it was for the sake of discipline as long as the clothes worn does not go against public order, morality or health.
This is extended and applied, even though the conditions may restrict to a degree of that practices of some of its officers. Finally, court highlighted that at paragraph 2.2.1 of the circular, it is lawful and reasonable for the dress code to be followed.
Disobeying reasonable or lawful governmental directives or order would amount to disciplinary action against him or her by an appropriate disciplinary authority. If this is allowed, then it is difficult for anyone to identify a person wearing a purdah.
A person could masquerade as a lady officer and handle secret governmental documents and interest which must be protected at all cost. Even wearing a name tag, it does not reflect the person wearing the purdah. A man with fake breasts and placing a frying pot at their stomach for a pregnant illusion could deceive others for espionage or spying into confidential government documents.
(2.2) Private Sector
According to the Occupational Safety and Health Act 1994 (OSHA) and the Factories and Machinery Act 1967, employers are required to take all reasonable practicable steps to ensure the safety, health and welfare of persons at work and protect others against risks to safety and health and connection with activities of persons at work.
Any breach of the above obligation would cause penal action taken against the employer or even a civil suit for negligence for breaching the duty of care of a prudent employer. If a woman were to wear a hijab, similarly to the Hj Halimatussadiah case, then we would have to consider if the hijab may be prejudicial to the workplace.
If there are restrictions imposed by the workplace, it is important to note that workers must comply with the legitimate directives or orders by the management. Take note, 'legitimate'. Any willful disobedience would be a sign of insubordination.
The Federal Court states in Ngeow Voon Yean v Sungei Wang Plaza Sdn Bhd/Landmarks Holdings Bhd [2006] 3 CLJ 837; that;
"Working as instructed is the employee’s basic consideration under a contract of employment just as providing remuneration is the basic consideration of his employer."
The Industrial Court supports this contention in Tuan Hj Mohd Noor Sandiman v Federal Power Sdn Bhd [2008] 3 ILR 382, the employee must adhere to all 'lawful' and 'reasonable' orders or instructions of his employer or superior, as only then full cooperation and mutual respect inside a harmonious industry could be acceded.
Therefore, if the orders, instructions or directives, let's say bans, prohibits or dismisses the person wearing the hijab in the workplace. The woman could challenge the dismissal or the order as it is illegitimate, illegal and unreasonable. That would be fore the Industrial Court to decide as provided in Norizan Bakar v Panzana Enterprise Sdn Bhd [2013] 6 MLJ 605.
Since Malaysia is a predominantly Muslim country with almost 70% professing Islam, there may still be rare occassioms for companies that restrict the hijab such as airlines, hotels or the model industry.
The Industrial Court in Kong Seng Chai v Perusahaan Nasional Otomobil Sdn Bhd [2019] 1 LNS 388; states that claimant's failure to conform to the Company's dress code in not wearing a neck tie for meeting could be viewed as a minor misconduct. However, in that case, it became worse as when he refused to wear a tie, he also did not return to the meeting back at all to deliver his presentation. This would amount to insubordination.
Therefore, perhaps in an office scenario, as long as the woman wears the hijab and exposes her face, and maintain good character and traits it would not be a problem, even if she wore a hijab. A person should not be discriminated based on their social background, race, religious beliefs and political thoughts.
Lastly, in Naziah Sauni Samat v Damai Service Hospital (Melawati) Sdn Bhd [2018] 2 LNS 1906, the hospital requires a dress code that included the blouse sleeves to be short as it was rationalized to control infections so that the patients would not be exposed to probable infections or diseases. However, the claimant refused to follow this dress code and still wore long sleeves.
Dissatisfied, she appealed to an NGO named the Persatuan Pengguna Islam Malaysia (PPIM) with 13 men entering into the hospital's premises as to order them the hospital to concede that she may wear long sleeves. This caused insubordination, causing trust and confidence issues which caused her employment to be on hold for 48 hours until she herself abandoned her job.
From here, a Muslim woman's right to cover her arm is also part of covering her modesty, equally important to the hijab. Though, there may be hygiene and infection issues if a woman were to cover her hair with the hijab or have long sleeves, perhaps the hospital or any workplace can make and help to make the Muslim attire to be hygienic-friendly and safe from being tangled in factory machines.
For instances, Farah Shaheera Roslan caught the intention of the global public after pictures of her were seen in hospital scrubs. What made her viral was that, she wore a disposable hijab that was invented and introduced by the Derby Hospital Trust.
She was also once told to wear an orthopedic hood rather than the hijab. She did not blame the staffs as it was the trust policy. The staffs were even kind to take a pair of scissors and adjust the orthopedic hood to resemble a hijab.
(3.0) Conclusion
To conclude, in Malaysia the government allows the hijab, but should not cover their faces for public safety and national threat issues. Clearly, the purdah is not part of Malaysian culture.
In private sectors, it is a grey area, but private sectors should also be lenient and give reasonable justifications for restrictions if it causes hygiene problems and safety issues.
Therefore, employers should find ways to make the hijab hygiene-friendly or safe such as tucking the excess cloth into their shirt to avoid getting tangled into any machines or cause any accidents.
(4.0) References;
AlJazeera (July, 2021) Top EU court rules hijab can be banned at work. Retrieved from, https://www.aljazeera.com/news/2021/7/15/top-eu-court-rules-hijab-can-be-banned-at-work
Rankin, J. (July, 2021) EU companies can ban employees wearing headscarves, court rules. Retrieved from, https://www.theguardian.com/world/2021/jul/15/eu-companies-can-ban-employees-wearing-headscarves-religious-symbols
Siebold, S. & Melander, I. (July, 2021) EU companies can ban headscarves under certain conditions, court says. Retrieved from, https://www.reuters.com/world/europe/top-eu-court-says-headscarves-can-be-banned-work-under-certain-conditions-2021-07-15/
Zaharah Othman (December, 2019) Postcard from Zaharah: Making history with disposable hijab. Retrieved from, https://www.nst.com.my/news/exclusive/2019/12/551695/postcard-zaharah-making-history-disposable-hijab
Comments
Post a Comment