Separate but equal?
Uniform policies must be thorough and updated regularly with input from the school community, reports Sally Robertson. Neutral policies may counterintuitively undermine diversity
Gender-neutral uniform policies are gaining prominence as schools focus on serving diverse communities and providing an inclusive environment. That impetus is likely to increase in light of the implications of European courts’ consideration of neutral uniform policies in the context of employment and wearing religious symbols and clothes. The emphasis is firmly on the proportionality of any measures taken by an organisation to further the aim it is trying to achieve. There must be a fair balance between the aim of the particular policy and the extent of the interference with the right in question.
One need raised in recent case law (in two cases known as WABE and SCRL) is to address the problem that total neutrality may instead undermine diversity. For example, if head coverings are banned, that would have a greater adverse effect on those who wish to wear religious head coverings, than on those who do not. If the policy permits boys to wear a traditional Sikh patka, a turban for children, but does not permit Muslim girls to wear a hijab, that invites not just claims for indirect discrimination on grounds of religion or belief but also claims for direct and indirect discrimination on grounds of sex.
In the past, dress codes applying a ‘separate but equal’ philosophy have been seen as acceptable. However, the Court of Appeal in the Al-Hijrah case in 2017 began to unravel that approach. Al-Hijrah is a voluntary aided faith school in Birmingham for boys and girls aged between four and 16 with an Islamic ethos. For religious reasons, it believes it is obligatory to separate the sexes in the age range from nine to 16 years. Until June 2016, Ofsted reports did not criticise the segregation. Even then, the quality of what was taught was found to be no different between boys and girls. The core criticism was that all suffered educationally from the restriction on social interaction.
Al-Hijrah school began proceedings for judicial review to prevent Ofsted publishing any report and for anonymity. In the Administrative Court, the school was successful. The judge said that as the treatment of both groups was of equivalent nature and character, with equivalent results for both sexes, it could not be said one sex was being treated less favourably than another, so there was no unlawful sex discrimination. The Court of Appeal rejected that approach and overturned the anonymity order. The mistake in Al-Hijrah was to approach the issue of discrimination by comparing the girls, as a group, with the boys, as a group, rather than by looking at the matter from the perspective of an individual pupil. The restriction on a girl pupil socialising with boy pupils, and on a boy pupil socialising with girl pupils, was because of their respective sex. An individual girl pupil could not socialise and intermix with a boy pupil because and only because of her sex; ditto for an individual boy pupil. Each was therefore treated less favourably than they would be if their sex was different.
So what does Ofsted’s successful appeal establishing that the school’s gender segregation breached the Equality Act 2010 have to do with dress codes? The answer lies in the underlying theme that individuals should be treated as individuals, not assumed to be like other members of a group, nor treated on the basis of stereotypes. That arguably is the core policy informing equalities legislation.
The case law on dress codes also relies on a group perspective, one of ‘different but equal’ so is arguably vulnerable to challenge. The developing challenge, from the perspective of religion or belief, can be seen in the approach of the European courts, most recently in SCRL. The school in the Al-Hijrah case had relied on two dress code cases. The Court of Appeal considered both briefly, found them of no assistance and, in substance, sidelined them as being of historical interest only. They did not hold that either case was wrong in its approach to whether a dress code was discriminatory because of sex.
THE OLD DRESS CODE CASES
In the main case, dating from 1996, Nicholas Smith, a male delicatessen assistant was dismissed by Safeway for having his long hair tied in a ponytail; a female assistant would not have been. The Court of Appeal in Smith held that the dress code had to be considered as a whole package, not item by item, and that it could also apply to more permanent features such as hair style and hair length. Applying conventional standards of appearance for men and women was an even-handed approach. Neither sex was treated less favourably.
Then in 2011, the Administrative Court relied on the Smith ‘package’ approach when finding it was not unlawful sex discrimination to ban a boy wearing his hair in cornrows even though girls were permitted to do so. However, the school’s refusal to allow an exception to its uniform policy in the circumstances amounted to indirect race discrimination and could not be justified.
So where does this leave schools? Boys in skirts and girls in trousers? As Lord Bingham said in 2006 when upholding Denbigh High School’s exclusion of a jilbab from its uniform policy: “This case concerns a particular pupil and a particular school in a particular place at a particular time.” Every case is context specific. In this case (called Begum), the school had taken a responsible and careful approach. It had consulted more widely than the immediate school community. “It had taken immense pains to devise a uniform policy which respected Muslim beliefs but did so in an inclusive, unthreatening and uncompetitive way. The rules laid down were as far from being mindless as uniform rules could ever be.”
REVIEW WITH USERS
The most recent guidance from the Department for Education, published in November 2021, builds on the themes emerging from the cases, Begum in particular. It suggests schools engage with parents and pupils when designing a uniform policy or making significant changes. It also advises schools to consider carefully the risk of challenge to the policy and “consider the appropriate insurance cover”.
The National Education Union’s guidance on uniform or dress codes was also updated in November 2021. The NEU point out that the goal of a dress code or uniform policy should be for students to feel comfortable and able to participate fully in school life.
If dress codes are flexible and even- handed in their application, and have been regularly consulted upon, taking account of the potential impact on disability, gender, gender identity, race, religion or belief, and sexual orientation, then even if an aspect of it now puts one pupil at a particular disadvantage because of a protected characteristic, that may well be justified.
The most important point is that a school is clear about what it wants to achieve, and why, by each aspect of its uniform/dress code. If the aim is a legitimate one, that is half the battle. The next question is whether the means chosen to achieve that aim are proportionate. The exercise is that of a balancing act between competing rights, including the best interests of the school and its community. Get the balancing act right, and as in Begum, interference with the rights of one pupil would be justified in law. As such, it would not be indirect discrimination. Get the balance wrong, as in the patka and hijab example above, and it could be either direct or indirect sex discrimination.
Sally Robertson is a barrister for Cloisters Chambers