Pupils’ presentation and school uniform policies: responding to claims of discrimination under the Equality Act 2010

School uniform policies may be challenged by parents or pupils under the Equality Act 2010.  Grounds for such challenge may include race, religion or belief, or sex and there have been a number of high-profile court cases against school uniforms in recent years.

It is important for schools and academies to familiarise themselves their obligations under the Equality Act, thereby supporting pupils’ wellbeing and avoiding legal challenge.

Identifying Potential Discrimination

Legal challenges to a school’s uniform policy may arise where a pupil wishes to wear an item of clothing or to wear their hair in a way which is not allowed by their school’s existing uniform policy. Pupils may then allege that the school’s decision not to allow them to do so is discriminatory.  

Claims of discrimination are likely to be of indirect discrimination (as opposed to direct discrimination) – namely where all pupils are treated equally but the effect of that treatment is different on, for example, different racial or religious groups:

• A uniform policy may commonly ban headwear in the classroom – but should a pupil be permitted to wear a headscarf or niqab?
• A uniform policy may commonly ban jewellery – but should a pupil be permitted to wear a Kara Bracelet? 
• A uniform policy may commonly insist on ‘natural hair styles’ or ‘short hair’ or ‘hair tied back’– but how does this impact on a pupil with afro hair or whose hair is in dreadlocks as part of their religion?

A Balancing Act

Given the ‘indirect’ nature of any such potential discrimination, any disadvantage or detriment caused by the provision in the uniform policy is very unlikely to be intended or desired by the school.   However, the school will need to clarify what the aim of the provision in the uniform policy is, and that aim will need to be ‘legitimate’. For example, they may have a variety of aims in not permitting headwear in the classroom: 

• because of cultural beliefs that it is polite to remove one’s hat inside;
• for general presentation purposes;
• to avoid the possibility that any headwear obscures another student’s view. 

In determining whether such a provision is indirectly discriminatory, however, the law also requires an assessment of proportionality to be undertaken between the school’s ‘legitimate aim’ and any disadvantage or detriment experienced by members of a particular racial or religious group as a result of the provision. 

Should a pupil or their parent claim that a school’s uniform policy is discriminatory, we would always advise schools to communicate with the pupil to establish the importance of the item or hairstyle to that pupil’s identity. This information should then enable the school to assess the proportionality of the existing provision in relation to its aim and any disadvantage experienced by that pupil.  If it assesses the provision to be disproportionate, the school should be considering either revising its existing policy or making an exception for the given circumstances. 

These matters are typically far from straightforward and our Education Team often advise schools on all aspects of equality law, including undertaking reviews of their existing policies.