Last week the Equality and Human Rights Commission (EHRC) introduced new guidance for schools regarding how to avoid potentially discriminating against students on certain hairstyles, including Afros and head coverings.

Specifically, the EHRC said policies that ban certain hairstyles without making exceptions on racial grounds “are likely to be unlawful”.

So what do school leaders need to know about this and how should they change their school policies as a result?

Guidance, not law 

Well, the first point to note is that the law hasn’t changed.

Although hair is not specifically noted as a protected characteristic in the Equality Act 2010, pupils were already protected against hair discrimination under other grounds, such as race or religion.

Schools have long been under a duty to ensure that their uniform policies, which will often include a policy on hairstyles and appearance, complied with the Equality Act 2010.

There is also existing guidance from the Department for Education on school uniforms, which states that policies should be as “inclusive as possible” and reminds schools that policies should not be discriminatory.

However, the introduction of specific guidance from the equality watchdog relating to hair discrimination follows some high-profile cases where parents and pupils have taken legal action against schools for enforcing policies that ban certain hairstyles, such as cornrows or Afros.

In addition, there have been reports of pupil protests in some schools against policies that are perceived as discriminatory. 

The guidance is non-statutory and is designed to help school leaders and governors ensure that policies on hairstyles and head coverings in school do not discriminate against certain groups of pupils.

The EHRC notes that pupils with Afro-textured hair or hairstyles are disproportionately affected by such policies, although consideration should be given to the impact of policies on all protected characteristics such as sex, gender reassignment and disability.

The references to head coverings include religious-based coverings and African heritage head wraps, as well as coverings that might be worn if a pupil has a disability such as cancer.

How can a school’s policy on hairstyles be discriminatory? 

A policy that has general application could be indirectly discriminatory if it puts pupils sharing a protected characteristic, such as race or religion, at a disadvantage compared to pupils who do not share that characteristic.

Under the Equality Act 2010, a pupil’s ethnic origin is also protected and can therefore include broader considerations such as cultural, family and social customs.

A policy that has this effect will be unlawful unless the school can show that it can be objectively justified as a proportionate means of achieving a legitimate aim. 

The EHRC’s resources state that it is unlikely a school will be able to justify banning certain hairstyles without exception in order to uphold a positive image of the school or because certain hairstyles are perceived to be “smart”.

Some rules on hairstyles might have been accepted in the past but do not stand up to scrutiny against schools’ current legal duties and the latest guidance.

Time to review 

We recommend that governors review policies on hairstyles and head coverings in light of this guidance to ensure that they are not discriminatory.

The decision-making tool available on the EHRC’s website sets out a list of expressions with broad meanings that are best avoided, including “distracting” and “extreme” as they do not provide sufficient clarity. Policies should also avoid labelling hairstyles in a derogatory manner.

If certain hairstyles or headgear are banned, the policy should allow for exceptions to be made.

It is also good practice to consult with stakeholders on such policies, which should be a positive way of engaging with the school community and taking on board their feedback.

This may be a natural extension of the work that many schools are already doing to ensure that school life and the curriculum are more inclusive. 

It is also important that schools continue to listen to parents and pupils if concerns are raised after the formal consultation has concluded. 

Schools should also provide training to staff on the updated policy and the school’s duties under the Equality Act 2010 and take seriously any allegation of bullying relating to a pupil’s hairstyle.

In summary, there is still some work to do in the sector to improve policies and practices in relation to hair discrimination but engaging proactively with the new guidance is certainly a step in the right direction.

Theresa Kerr is a partner in the education department at Winckworth Sherwood LLP and is head of the legal support service for schools