Do different uniforms for boys and girls amount to sex discrimination?

In many schools, dress codes are based on fairly traditional models, with gender-specific uniforms and other rules about appearance.  While most schools now allow female pupils to wear trousers, many require boys to wear ties when girls are not subject to the same requirement.  It is also common to find different rules on jewellery and length of hair. 

Are these distinctions still acceptable, or do they constitute unlawful sex discrimination?  In this article we will consider whether different rules for male and female pupils (or, in single sex schools, standards of dress based on traditional ideas of gender-specific attire) would be likely to stand up to a challenge on the basis of sex discrimination.

The law

The Equality Act 2010

The Equality Act does not deal specifically with school uniform, but the general requirement under the Act not to discriminate in the treatment of pupils applies.   

However, government guidance for schools on the Act notes that differences in uniform requirements for male and female pupils are standard, and unlikely to be discriminatory unless one gender is particularly disadvantaged (for example, if the uniform for boys is much more expensive than the uniform for girls).  

It is therefore up to schools to consider the implications of gender specific uniform rules on their pupils.   

Case law

Although disputes about school uniform occasionally make the press, the relevant case law tends to come from the field of employment law.

In the 1979 case of Schmidt v Austicks Bookshops Limited, Marianne Schmidt challenged her employer over its policy which required female employees to wear skirts, while men were allowed to wear trousers. The ruling handed down by the EAT in this case is still the key case on dress codes and sex discrimination. The EAT took the view that, as both women and men were required to have the same overall standard of dress, there was no discrimination – even though the specific requirements were different for men and women. In other words, the EAT accepted that 'smart' dress for men did not necessarily mean the same as 'smart' dress for women, and provided that the same yardstick of 'smartness' was being used, discrepancies in the individual obligations were acceptable.

Cases that have followed since have adopted this line of reasoning. For example, a dress code that stipulated that employees working at a supermarket deli counter must dress in a 'smart and conventional way,' including a requirement for men to have short hair, was held to be non-discriminatory for the same reason in 1996.

However, whilst the reasoning from Schmidt is still relevant, its application is evolving with societal norms around dress. In Schmidt terms, it would be a brave school (or employer) that presumes that a tribunal would still find that women could not be 'smart' and wear trousers at the same time.  But it would be less risky to work on the basis that conventional smart dress for men does involve trousers.   

This principle extends beyond the skirt/trousers debate. In 2004, Mr Jarman won a case against Link Stores over their policy of permitting female employees to wear earrings, whilst not allowing men to do so. Cases like this one and others that have followed should be treated as a warning that attitudes to dress are changing.

Implications for schools

The obvious risk for schools is that a pupil could bring a successful claim for sex discrimination.  

However, arguably even more damaging is the reputational capital that schools stand to lose. Once a certain image of an outdated institution is formed, it can be difficult to shake off.  As demonstrated by the recent media storm surrounding a secretary at an accountancy firm who was required to wear high heels (whose public campaign forced a reversal of the firm's policy), the explosion of social media has transformed the pace and intensity at which issues such as this are shared in the public domain.

Less tangibly, but perhaps more importantly, there is also clearly a need for schools to create an environment in which pupils feel comfortable with how they are required to present themselves.

Recommendations for staying on the right side of the law

Review the wording uniform policies

Schools can add a layer of protection by making the aim of their uniform rules clear: rather than simply stating 'boys must wear X, girls must wear Y', this can helpfully be framed in such a way that reflects the rationale of the dress code.

For example, a school uniform policy might begin with 'X School requires all students to dress smartly in order to reflect the identity of the School. Therefore, boys must wear… and girls must wear…'.

Consider changing out of date policies

Although it is helpful to make clear the objectives of a uniform policy, a change of wording alone will not save a policy that is fundamentally discriminatory. Schools should review policies carefully and consider whether it would be prudent to change the substance of the policy itself – particularly if it is meeting resistance from pupils and parents.

Consultation

Whether writing a new policy or dealing with a challenge to an existing one, a useful intermediate measure for schools is to consult with staff, pupils and parents. It is emphasised in non-statutory guidance notes and previous cases that a properly conducted consultation is persuasive evidence for an organisation that is later required to defend a legal challenge.

In many ways, a school has nothing to lose from going through this process if there are concerns about whether an existing policy can be justified:

• If the policy is endorsed then there is unlikely to be any real need to change it.
• Where there is no clear outcome, it would probably be acceptable for the school to decide that the views of a small number of individuals are outweighed by the need to promote a certain identity for the school. In this case the school would have a clear, well-documented process they could use as a shield later down the line if challenged.
• Alternatively, if opinion is overwhelmingly in favour of a change to the policy, the school would be ill-advised not to respond accordingly. In this case, a change is almost certainly going to be necessary in the long run in any event, and at least by consulting the school has shown itself to be receptive to the views of stakeholders.

Consider other protected characteristics

In this article we have focused solely on sex discrimination.  School dress codes do, of course, have implications in relation to other protected characteristics such as religious belief, disability and gender reassignment, and these should also be considered when dealing with issues relating to uniform.

If you require further information on anything covered in this briefing please contact Alice Cave ([email protected]; or 020 3375 7265) or your usual contact at the firm on 020 3375 7000. Further information can also be found on our Schools and Employment pages.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances. 

© Farrer & Co LLP, October 2016