On 27 October, the Equality and Human Rights Commission (EHRC) issued new guidance on preventing discrimination in schools arising from hairstyles and policies on them. The guidance is designed to help school leaders “foster an inclusive environment by ensuring their policies, where they develop and review them, are not unlawfully discriminatory”.
This followed the case of Ruby Williams, a student at the Urswick School in East London, who was repeatedly sent home after her natural afro hair was deemed to be in contravention of the school’s uniform policy.
At the time, this policy stated that “afro hair must be of reasonable size and length”. After a considerable legal battle, supported by EHRC, Ruby received an out-of-court settlement. The school did not accept any liability, but has now removed this quoted portion from its policy and added provision for reasonable exceptions.
In its guidance, the EHRC note that school uniform policies that ban certain hairstyles, without the possibility for exceptions, are likely to be unlawful.
The law
The law that may be engaged is the Equality Act 2010. This sets out nine “protected characteristics” for which individuals cannot be discriminated against. In the context of school uniform and appearance policies (including hair and hairstyle) the most relevant are: disability; gender reassignment; race; religion and belief; and sex.
Discrimination under the act can be direct or indirect. Direct discrimination is where one person is treated less favourably than another because of their protected characteristic. Indirect discrimination is where there is a provision, criterion or practice that is applied equally to everyone, but which puts a person (and those who share their protected characteristic) at a disadvantage compared to those who do not share that protected characteristic.
To be justified, the allegedly discriminatory measure must be a proportionate means of achieving a legitimate aim. Schools must also have regard for the “public sector equality duty”. The EHRC advocates for staff training on understanding and supporting compliance with these obligations. Despite this, a recent survey by the World Afro Day campaign found that more than three-quarters of teachers had not received any training on how the act applies to school uniform and appearance policies.
Certain forms of clothing, hairstyle, jewellery and so on may be of great importance to a person’s identity. It can quickly be seen how blanket school uniform policies seeking to ban or regulate aspects of appearance might be indirectly discriminatory.
Taking another example, a policy regulating how boys and girls should dress may adversely affect a pupil who identifies as a different gender to the one they were assigned at birth or who is gender fluid. As well as creating stress for that pupil, the policy may also be discriminatory on the basis of gender reassignment.
Clearly, there are a host of considerations for schools to be mindful of. To assist in this, there are several sources of guidance available.
The guidance
As well as the EHRC’s guidance, the Scottish government recently committed to introducing statutory guidance to ”address equalities issues around uniform policy and reduce the cost of school uniform”.
A consultation on the matter closed in October 2022. It sought views on the scope of the guidance and the rationale for, and cost of, school uniforms. It also sought views on 12 draft principles that will set “high-level parameters” for school uniform policy and national guidance. These principles include reducing the cost of uniforms; promoting equality by recognising specific protected characteristics; and enhancing consistency and sustainability of uniforms. It will remain the case that there is no legal requirement upon pupils to wear school uniform, but there should be an “appropriate response” for persistent non-wearing.
Several stakeholders have published their consultation responses publicly. The primary themes drawn from these responses are firstly the need for consultation with pupils, parents and staff, and secondly the importance of reducing cost.
Given the current economic climate, the emphasis on cost saving is unsurprising. Responses from the Child Poverty Action Group (CPAG) and the NASUWT teaching union note parents’ stress when uniform policy requires purchasing branded items (that is, those with school logos) from approved uniform suppliers as opposed to unbranded items from supermarkets. The impact of this is exemplified by research by the Competition and Markets Authority, which reported that suppliers with exclusivity arrangements were 150 per cent more expensive than supermarkets.
Both CPAG and NASUWT encourage highlighting the clothing grant in Scotland. NASUWT advocates for a consistent approach to the grant, noting that eligibility varies across the 32 local authorities. Against the backdrop of the cost-of-living crisis, this appears to be a sensible suggestion for policy development.
Guidance issued in England and Wales adopts broadly the same approach. If a school decides to introduce or amend a uniform policy, it is encouraged to engage with pupils, parents and staff. It should consider the cost of the policy and ensure it is as inclusive as possible. The practicality of uniform requirements is important. For example, requiring a “school coat” is discouraged in favour of allowing children to wear whichever coat they already own.
The guidance encourages a “sensible approach” to exceptions to policies and specifically references the need for sensitivity in relation to protected characteristics and avoiding unlawful discrimination. If it is determined that a requirement will affect a certain group with protected characteristics more than others, then schools are guided to think carefully about whether that measure is in fact the best way to achieve the school’s aims, and what mitigations can be put in place. There should be a user-friendly complaints process to resolve any disputes on the policy, and policies should be reviewed and updated regularly.
Deeper consultation with pupils, parents and staff can enhance understanding both of the terms of the policy itself, how it might affect different groups within the school, and the rationale for any exceptions. Any questions on the policy or requests to deviate from it should be dealt with thoughtfully and effectively from the start; complaints should become less likely.
It would be sensible for schools to review their current policies if they have not done so recently, with regard to both the EHRC guidance available and the English and Welsh guidance. The forthcoming Scottish guidance will likely cover many of the same bases, but this is an area of rapid development. When issued, the Scottish guidance will be well informed by consultation responses and is likely to reflect the most recent public opinion on these matters. Schools may wish to revisit their policies again at that point.
Adherence to guidance and published policies not only helps in shaping and justifying policies - but also in the event of any dispute arising.
Bruce Caldow is a partner and Claire Fowler is a trainee solicitor, both at the Scottish law firm Harper Macleod
