School Uniform Policies and Indirect Discrimination under the Equality Act 2010

13 Jan 2021 By Khatija Hafesji

Khatija Hafesji looks at the legal action threatened against Muslim parents in relation to their daughter’s breach of school uniform policy.

Earlier this week, several national and international newspapers reported that Siham Hamud (“SH”), a 12-year-old Muslim pupil at Uxbridge High School, had been repeatedly sent home from school for breaching the school’s uniform policy (“the Policy”). Her breach was to wear an ankle-length skirt rather than the short skirt or trousers which all school children are required to wear pursuant to the Policy. As a result of being repeatedly sent home from school, she had accumulated three weeks’ of unauthorised absences and the school threatened to bring legal action against her parents.

School uniform policies, and the enforcement of them, are often controversial amongst students, however this case raises interesting issues around what legal considerations schools must take into account when formulating their uniform policies and also best practice around resolving disputes concerning school uniforms.

The Equality Act 2010

Uxbridge High School’s Policy states that all pupils must wear either plain black trousers or a plain black pleated skirt (Year 7s may wear a pleated tartan skirt). Any students wishing to wear a skirt “must purchase the black pleated skirt from our uniform suppliers”. Students are permitted to wear headscarves. It appears then that the uniform suppliers do not stock an ankle-length skirt, the only option being a shorter presumably knee-length skirt. The alleged breach of the Policy then, is clear: SH would not wear the short skirt purchased from the uniform suppliers, or the alternative of trousers. It is noteworthy that the Policy does not contain any prima facie flexibility or exemptions.

Uxbridge High School’s Policy, and its enforcement, may raise concerns around indirect discrimination. Indirect discrimination is defined at section 19 of the Equality Act 2010 and applies where a provision, criterion, or practice is applied to all, but in doing so puts a person with a protected characteristic at a particular disadvantage compared to others without the protected characteristic. In the absence of a justification which shows that the measure is a proportionate means of achieving a legitimate aim, the conduct will be discriminatory. The relevant protected characteristic in this case would most obviously be religion (section 10).

It would be necessary to show that the group sharing SH’s protected characteristic is, or would be, at a particular disadvantage in comparison to those who do not share the characteristic. It is also necessary to show that the claimant has experienced, or would have experienced, the same disadvantage as the group. Uxbridge High School may argue that there is no particular disadvantage. The school may argue that wearing an ankle-length skirt as opposed to trousers is not a requirement of the Islamic faith, and – relatedly – that other Muslim students at the school are complying with the Policy. By analogy with R (Watkins-Singh) v Aberdare High School [2008] EWHC 1865 (Admin), it is not necessary to show that wearing an ankle-length skirt is a compulsory requirement of the Islamic faith. Rather, all a claimant has to show is a genuine and reasonably held belief that wearing the clothing was of exceptional importance to her religious beliefs, and that wearing the clothing can objectively be of exceptional importance to her religious beliefs (Watkins-Singh, para 56). Any claimant would need to adduce evidence demonstrating that modesty on the part of both genders is a requirement of / or exceptionally important to the Islamic faith and that for women this is interpreted by many as excluding the wearing of trousers or short skirts.

Uxbridge High School would have to demonstrate that such a view is a “subjectively personal religious view” (Eweida v BA [2009] 1 ICR 303 at para 61). The burden of establishing a particular disadvantage to the group is however on the claimant, who would be required to show that hers is not a subjectively personal religious view but is one held by the group as a whole even if this is not manifested in practice for some. Whilst the absence of complaints from others in the group may be a relevant factor, it cannot be determinative: the absence of complaints from others who are complying with a policy in order to access education which would otherwise be denied, is not necessarily evidence of an absence of disadvantage.

There is precedent for such an approach. In G v Head Teacher and Governors of St Gregory’s Catholic College [2011] EWHC 1452 (Admin), a male pupil successfully challenged his school’s decision that he could not wear his hair in cornrows. This was held to amount to potential indirect race discrimination (depending on the relevant justification, see paras 41 and 51). The particular disadvantage to the claimant in this case was being turned away from school on his first day, which was a traumatic experience, for refusing to cut his corn rows in order to comply with the school’s policies (para 37). It could be argued that SH has experienced this particular disadvantage along with others such as: being deprived of effective access to education over several weeks at a time where school children have already suffered a significant deprivation of education due to Covid-19, an apparent inconsistent implementation of the school’s policy over a period of time which can make a child feel as if she has been ‘singled-out’ even where they are not.

Whether or not the indirect discrimination is unlawful depends on the school’s justification of its Policy. Uxbridge School has not explained its justification, however possible arguments may be:

  •  A ‘thin end of the wedge’ style of argument, which impresses upon the importance of a consistent and coherent school uniform policy in order to maintain standards, discipline and cohesion at school. An argument may be that providing an exemption for SH may undermine the overall effectiveness of the policy. An argument along these lines was advanced in G, however it was rejected. Collins J stated that there was no evidence that respecting a child’s cultural values and family practices (as it was in that case) by providing for a limited exemption in the school’s policy would undermine the effectiveness and aims of the policy as a whole (para 48). Indeed, in this case it may even be argued that a policy which shows appropriate respect for the diverse faiths and religious practices of a school’s population, particularly in a deprived and diverse community, strengthens the aims of the uniform policy.
  • Other possible justifications may include concerns around health and safety or ensuring a balance with the rights of others, however it is difficult to envisage how these arguments may operate in practice in this case.
Approach to Dispute Resolution and DFE Guidance

The approach advocated in the “School uniform: guidance for schools” published by DFE sets out the best practice to which all schools should have regard to avoid – where possible – escalations of this nature. The Guidance is non-statutory, however schools are expected to take full account of it (page 3). The Policy makes a number of noteworthy points:

  • When setting school uniform policies, take into account the views of parents and pupils and consider the impact of the policy on each group represented in the school (page 4);
  • Ensure school uniform policies are not overly rigid, and that any reasonable requests to vary the policy in order to accommodate a pupil’s religious beliefs are carefully considered (page 4);
  • Makes express reference to the need to ensure that uniform policies do not discriminate unlawfully, and highlights the risk of indirect discrimination on the grounds of religion and belief (page 6).

Uxbridge High School is located in an ethnically and religiously diverse part of West London, and may therefore be expected to have greater familiarity with the religious beliefs and practices of its school’s population than less diverse schools. It may therefore be surprising to see a dispute as to school uniform culminate in a threat of legal action against SH’s parents unless they ensure she complies with the Policy, only what is reported to be 8 days after she was initially sent home from school. This case provides a timely reminder to students, parents, and schools of their rights and obligations under the Equality Act 2010 when formulating and enforcing school uniform policies.

Khatija Hafesji is a barrister at Monckton Chambers with a broad public law practice, including in children’s rights and education law.