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Of course it is illegal to discriminate in disciplinary and grievance matters and I often conduct an independent hearing to adjudicate on allegations of misconduct or very serious issue of capability or conduct and that lead me to thinking about the issues of the wearing of niqaab in a quasi judicial hearing such as disciplinary matters.

To date the issue has never arisen for me.  Unlike a court, employers have no powers to order the lifting of a veil when giving evidence, although they can, of course, ban them. This led me to reading the judgement of H.H. Judge Peter Murphy in relation to wearing of niqaab by defendant during proceedings in Crown Court.

In doing so I looked at the way in which the Judge approached the matter (the form of his decision making) and then the actual guidance (and how his eleven points could be applied to quasi judicial; hearings).

The structured approach 

Narrow the issues

The first point I was struck by the approach taken by the Judge who narrowed the point to the relevant  he wanted the jury to see her face whilst giving evidence and was not making a statement about religious apparel. In his judgement we read that he recognised the burq’a being the term applied to the black loose shroud which covers the head and body and the the niqaab  as being the black veil which covers the entire face, except for the eyes. 

At another point in the procedure the court creatively allowed the defendant to be identified by means of evidence from a third party (in this case a female police officer) who observed the defendant in private without her niqaab during a short adjournment for that purpose, this meant that the need of the courtr was completed but also the needs of the individual were accommodated in a different way when appropriate.

Sensitively communicate the message

HH Judge Murray conveyed the message ‘through her representative (in this case barrister) and the reason. .  Why the policy is required and how it is to be done.  The communication was also undertaken sensitively, through a third party, to remove the emotive context of and debate. This is in much the same way as we would a policy.

Allow time; independent evidence, preparation of arguments and reveiw precedent

The judge decided “to take time to consider the matter. I adjourned the hearing to be listed before me for further proceedings including legal argument.   In this case the judge also “received an expert report from Professor Susan Edwards, an expert witness on Gender and Islamic Dress.”

In addition the arguments, the need to consider established procedures (precedent)   were considered .  In this case it was another matter where the informal compromise was arrived at.

Reflect and deliver a written response

In this, a complex case, the the Judge considered the facts and took a further three days, until 16 September 2013, to prepare an open and transparent judgement that all can read and consider.  Using such a method means that the thinking behind the decision can be examined.

I can only see good arising from HR and managers adopting an open approach to their decision. Such an approach also helps if faced with am employment tribunal, the facts, the decision and the reason for the decision are clearly articulated.  In this case the judge followed a pattern:

  1. In this case the question to be considered
  2. The principles to be applied
  3. The disputed issue(s)
  4. The procedures to be followed
  5. Issues on human rights
  6. Analysis of the facts before the hearing (including proportionality and legitimacy of the aims)
  7. Conclusion(s)

The guidance

What did the judge suggest to us in HR?

In arriving at the decision the Judge proposed to “adopt the least restrictive approach consistent with what I see as the necessity of enabling the Court to conduct the proceedings fairly and effectively in the interests of all parties.”

  1. The question of identification must be dealt with where the person should be asked to remove the niqaab for this purpose. If she refuses to do so, allow a reliable female witness to examine the face in private, and to give positive evidence of identification in open court.
  2. This procedure must be followed on every occasion when identification is needed, especially before the return of the decision and sentence (if appropriate).
  3. There may be cases where this procedure is insufficient, and where the niqaab must be removed, for example when there is an issue of visual identification, or suspicion of impersonation.
  4. In general, they are free to wear the niqaab during the hearing. But they should be be advised of the possible consequences of so doing, and make it clear that she will not be free to do so while giving evidence. She should be invited to remove the niqaab during hearing, and given time to reflect and take advice if she wishes to do so.
  5. Again, if there is an issue of visual identification to be decided, it may necessary to order that the
  6. niqaab be removed, at least while evidence relevant to that issue is given.
  7. When giving evidence, she must remove the niqaab throughout her evidence, perhaps doing what it can to alleviate any discomfort, for example by allowing the use of screens.
  8. Again, they should be advised of the possible consequences of refusing to remove the niqaab. She should be invited to remove the niqaab and given time to reflect and take advice if she wishes to do so. If she refuses,then she should not be permitted to give evidence.
  9.  Particular circumstances may arise in other cases where, having considered the matters which must be considered, to make a different set of rules. such as incidents where the evidence is effectively agreed; or where the evidence would be purely formal, or would not be challenged.
  10. The use of the feminine form is to be taken to apply to males in equal measure, should an
  11. analogous situation arise; and it applies alike to both male and females of any, or no, religious faith.

 

Summary

Reading the judgement in full is recommended for academics and HR practitioners.  MY comments are far from a detailed analysis of the judgement, but I commend HH Judge Murphy for his insight. To my mind his sensitive approach has managed to capture the essence of fair process judicial and therefore quasi judicial processes, something employers can take on board.  

You can read the actual judgement at this link here:

http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/The%20Queen%20-v-%20D%20(R).pdf

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