In a previous article we considered whether different uniforms for boys and girls constitute sex discrimination under the Equality Act. But with other characteristics protected under the Equality Act making the headlines in recent months, Schools need to be alive to the risks of indirect discrimination arising from the application of their uniform policies.
This is not a merely academic exercise – disputes about uniform can escalate dramatically if not handled appropriately. In 2021, Siham Hamud was suspended from school as she wanted to wear a longer skirt than was permitted under the uniform policy for religious reasons. Her parents were threatened with legal action for failure to ensure she attended school. You may remember in March last year that hundreds of students, parents and staff members protested outside Pimlico Academy. Amongst other things, the protesters were unhappy with the new uniform policy which banned colourful hijabs and hairstyles which “blocked the view of others”. The school protest attracted the attention of media outlets, the NEU and even MPs and led to the resignation of the Head Teacher. Our recent podcast considers the topic of hair discrimination in more detail.
The protected characteristics
This article will focus on four protected characteristics in the Equality Act (EqA).
- Race (s4 EqA) – this can cover discrimination based on colour, nationality or ethnic origin. For more information see our previous article here.
- Religion or belief (s10 EqA) – this covers any religion or lack of religion or philosophical belief that is worthy of respect in a democratic society.
- Gender Reassignment (s7 EqA) – this covers those who have or are proposing to undergo gender reassignment, for more see our article here. It is likely this provision covers both transgender and non-binary pupils.
- Disability (s6 EqA) – this covers a mental or physical impairment that has a substantial and long term adverse effect on a person’s ability to carry out normal day to day activities. In the context of uniform, the Schools Guidance gives the example of a pupil with a skin condition meaning they cannot wear nylon as qualifying as a disability.
While the EqA does not have a specific section dealing with uniforms, the Department for Education guidance “The Equality Act 2010 and Schools” (“the Schools Guidance”) makes clear that the question of uniforms falls under the school’s general obligation not to discriminate in the treatment of pupils under s85(2) EqA.
The most likely claim for a pupil to make is for indirect discrimination. Per section 19 EqA a claim of indirect discrimination claim is made out where:
- There is a provision, criterion or practice which applies universally (“PCP”); but
- puts, or would put, people who share the claimant’s protected characteristic at a disadvantage (“Group disadvantage”); and
- it puts, or would put, the claimant at a disadvantage (“Individual disadvantage”);
- unless the school can demonstrate it is a proportionate means of achieving a legitimate aim (“Objective justification”).
For this claim, it is no defence to say that you treated people equally; the entire point of an indirect discrimination claim is treating materially different circumstances the same way without good reason, causing a disadvantage to one group and not the other.
The definition of a PCP is broad. It is almost certain that a Uniform Policy will fall within the definition. The threshold of a PCP is very low. In British Airways v Starmer an ad hoc decision by management to give a counteroffer to a flexible working request counted. As such, a teacher enforcing the uniform policy, or refusing to make an exception to it, will probably count as well as decisions about uniform which apply temporarily, for example on school trips or at school social events.
An indirect discrimination claim relies on the Claimant proving that similar treatment produces a result which disadvantages a particular group of pupils with a protected characteristic as compared to other pupils who do not have the protected characteristic or, in the case of race or religion, whose protected characteristic are not impacted by the PCP. As such, the Claimant must demonstrate an impact to a substantial proportion of the other group.
In some cases the disadvantage will be obvious as the Claimant will be following a widely practiced tradition. What if the garment or hairstyle is not a strict requirement or the pupil follows a subset of the wider belief? Could a school argue it is not discriminatory because a group would not be disadvantaged?
First it is likely there has to be some link between the manifestation and the protected characteristic. This position was set out in the seminal European Court of Human Rights (“ECtHR”) case of Eweida and others v United Kingdom. The Claimant was a flight attendant on a BA aircraft. BA put a new uniform policy in place which banned, amongst other things, the external wearing of a Christian cross. The Claimant, who up to then had worn a cross externally, refused and was eventually dismissed. The ECtHR held there must simply be a “sufficiently close and direct nexus” between the act and the belief, it was not a requirement to show that the individual acted on a mandatory religious duty.
Since Eweida, Courts and Tribunals have been taking a wider approach to what constitute a manifestation in relation to religious belief. In Trayhorn v Secretary of State for Justice, the threshold for a group disadvantage was not a high threshold to reach. As the Court stated in G v St Gregory’s Catholic Science College Governors, it does not matter if the group is in the minority of opinion, just that there is a group. This always turns on the facts of the case for example:
- The item must be connected to the religion. In R (Lydia Playfoot) v Governing Body of Millais School – a silver ring symbolising pre-marital chastity was not sufficiently connected to the Claimant’s Christian beliefs. The ring was a symbol of her belief, rather than connected to it with no tenet of Christianity requiring it.
- Tenets that are explicitly prescribed by a religion qualify, even if they are only followed by minority of those in that particular faith. For example, in Dhinsa v Serco, the court accepted evidence that there was a group disadvantage, even though the Claimant was one of 10 per cent of all Sikhs who would be disadvantaged.
- In G the court held that a uniform policy that did not allow cornrows was indirectly discriminatory on grounds of race. The Claimant produced expert evidence that cornrows have historic cultural values that prohibited the cutting of hair. As a result, the Court accepted that a group of pupils in an African-Caribbean background would be disadvantaged by a policy prohibiting cornrows. This was in spite of the fact that the Chairman of the Governors was of Black Caribbean ethnicity agreed with the policy and did not regard cornrows as a sign of his identity. Even though the Claimant was in the minority of people who regarded it as an obligation the Court held there was a sufficient group to be disadvantaged.
- In the case of gender-questioning children, the Brighton and Hove City Council Guidance notes that a non-gendered uniform list is more likely to foster inclusion for gender-questioning children.
The concept of “disadvantage” is given more definition by the EHRC Code on the Equality for employers. It defines disadvantage as including a denial of opportunity or choice, deterrence, rejection or exclusion. Disadvantage is highly subjective, and it is simply enough that the Claimant wishes to be treated differently. For example, the Claimant identifies as non-binary and does not want to wear the uniform of their birth sex. Most commonly in the schools context a disadvantage can be shown by disciplinary action or merely being told to remove the offending item of clothing or particular hairstyle.
It is worth noting the individual disadvantage must be the same as the group disadvantage. For example, a school rule prohibiting the general wearing of the uniform of the opposite sex disadvantages transgender and non-binary pupils. However, a student who wants to wear the uniform of the opposite sex “for a laugh” or a charity event would not be covered.
An objective justification can be broken into two parts. Firstly, identifying a legitimate aim and secondly, assessing the proportionality of the measure.
A legitimate aim…
Courts and tribunals have accepted a number of legitimate aims over the years that could, if applied proportionately, justify the initial finding of indirect discrimination. These have included:
- Health and safety – for example in the case of Chaplin v United Kingdom heard alongside Eweida, the employing hospital insisted that the Claimant removed her visible crucifix. The Claimant worked in a hospital and the authority was concerned of the risk of infection if an openly worn crucifix came into contact with a wound.
- To ensure effective communication and good education (Azmi v Metropolitan Borough Council).
- To ensure smart dress and promote a good culture – although one should be careful of this. The school in G attempted to rely on this exemption to ban cornrows but failed to take into account government guidance which stated cornrows should now be considered smart.
- A desire to maintain neutrality is probably not a legitimate aim. You may have seen the widely reported European Court of Justice cases IX v Wabe and Muller v MJ, in which the CJEU accepted that employers could ban any religious or political symbols, so long as the ban is universal. However, irrespective of the position of EU law in the UK post-Brexit, it is likely this decision can be safely ignored. The Equality and Human Rights Commission have stated that it is “very unlikely” that this decision would apply in the UK due to competing case law from the ECtHR.
The legitimate air must be rationally connected to the measure proposed. For example, in Sethi v Elements Personnel Services Ltd, the employer, who provided staff for hospitality, had a “no beards” policy. The Claimant argued this was indirectly discriminatory to his Sikh faith, of which an uncut beard was a religious symbol. The respondent attempted to justify its measures for “health and safety reasons”. The Tribunal took a dim view of this justification, there was no rational connection between health and safety and the requirement to be clean shaven. The policy was evidently aimed at personal appearance, which had different considerations.
… applied proportionately to the circumstances.
Ensuring you have some concrete evidence to prove the proportionality of the legitimate aim is necessary:
- This is most emphatically demonstrated by the Canadian case of Multani v Commission scolaire Marguerite-Bourgeoys. In that case, a school governing board refused to allow a Sikh student to wear a kirpan (a Sikh dagger worn under clothing, one of the five articles of faith) due to safety concerns. The case went to the Supreme Court of Canada, who allowed the student’s claim. The Supreme Court noted that there was no evidence that allowing the kirpan to be worn had in the past caused safety issues, or was indicative of future safety issues.
- This is not to say that the kirpan would be fine in all instances. In the UK case of Dhinsa, a prison authority was permitted to ban the wearing of a kirpan. Given the number of assaults in UK prisons, against staff, including over 200 with a knife or blade, and the prison held a number of violent offenders. Applying that to a school context, with the rise in youth knife crime in certain regions of the country, it may be that a court accepted the health and safety risk of having any blade on-site.
This need for some evidential basis makes it unattractive to run a legitimate aim based on coherency of the policy as a whole.
- In Eweida it was noted that exceptions were made for Muslim and Sikh employees, they could wear headscarves or turbans in appropriate colours. The policy was therefore, not really a universal ban which made the prohibition of crosses all the more unjustifiable.
- In G the school argued its legitimate aim of preventing “gang culture and pop culture” from coming into schools would be undermined by permitting cornrows. While the aim was worthy, it noted that cornrows were permitted in the sixth form as a matter of choice, albeit they were not encouraged.
For an interference to be proportionate, it should be as unintrusive as possible. Rational alternatives should be considered before a blanket ban. For example:
- In Sethi, the Court analysed whether high standards of personal appearance, the true legitimate aim in the policy, was justifiable. While there was a rational connection, a far less intrusive means would be a requirement to maintain beards in a tidy fashion. The standard of “smartness” was highly subjective and prohibition of all beards was indirectly discriminatory.
- In Begum v Pedagogy Auras UK Ltd, the EAT implicitly approved a lower ruling that a nursery did not discriminate against a job applicant on religious grounds for wearing a long jilbab. The employer had noted the length of the Claimant’s particular jilbab was a health and safety risk and instead proposed a shorter version that came to the ankle. The Tribunal held this was justified.
Special considerations for disabled pupils
Section 85(6) EqA in conjunction with Schedule 13 paragraph 2, places the school under a duty to make reasonable adjustments for disabled pupils as defined generally in s20 EqA. This gives schools an obligation to minimise disadvantages caused by PCPs or physical features, using auxiliary aids if necessary. Schools are not permitted to charge the disabled student, or their parents, for making such a reasonable adjustment.
A failure to make a reasonable adjustment cannot be justified. However, an adjustment can be rejected if it is not reasonable in all the circumstances. However, the Schools Guidance notes a minor alteration to the uniform policy is likely to have little if any financial cost to the school and cause minimal disruptions for other pupils, meaning alterations to the uniform are likely to be reasonable.
What might making a reasonable adjustment include in the context of a school uniform? This is a highly-fact sensitive approach. Two examples are provided, one in the Schools Guidance and the other in the Equality and Human Rights Commission Technical Guidance for Schools:
- A pupil with a skin condition meaning they are allergic to nylon, is permitted to wear cotton instead.
- A pupil with a skin condition aggravated by cold is allowed to wear warmer and more comfortable clothing during the winter.
There are relatively few cases on the issue of failure to make reasonable adjustments to uniform policy. It is best to consult with parents or carers of pupils with a medical condition to see what adjustments they think should be made for the pupil and then consider whether the school could accommodate that request.
Practical tips for drafting and applying your Uniform Policy
When facing issues with children who are disabled, have a protected religion, disability or are gender-questioning flexibility is key.
- Ensure appropriate exemptions are made. Ensure all staff understand your uniform policy and how to respond appropriately for requests to diverge from it.
- When dealing with requests to diverge from the uniform policy, it is best practice to ensure that you have multiple people from various backgrounds to take the decision.
- Remember – no two people from the same faith or ethnic background will believe exactly the same things and manifest their faith or cultures exactly the same. A previous person of a similar background who did not manifest their belief or religion in the same way as the claimant is not evidence that what the pupil is proposing is invalid.
- Have you got evidence for your assertions of why something is not allowed? If you have empirical evidence to demonstrate that making an exemption will breach your legitimate aim, it is more likely to succeed than relying on a mere hypothetical.
- Educate the other pupils. A common concern may be that allowing one exception to the policy could undermine the culture as a whole. Allowing worthy flexibility for “worthy” requests could lead to widespread disobedience due to lack of understanding. The Court Multani issued a powerful statement to this regard:
“If some students consider it unfair that [the pupil] may wear his kirpan to school while they are not allowed to have knives in their possession, it is incumbent on the schools to discharge their obligation to instil in their students this value that is… at the very foundation of our democracy.”
- Constructive dialogue with parents, carers and pupils is key. It will very often be the case that such issues can be easily resolved if the right steps are taken.
With special thanks to Alex Evan, a current paralegal in our Employment, who helped prepared this article.
If you require further information about anything covered in this briefing, please contact Katie Fudakowski, or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, February 2022