Recently, there has been considerable press attention surrounding uniform policies and religious clothing, more specifically regarding schools (largely those with a religious character) listing the (occasionally compulsory) wearing of the hijab by girls in primary schools. Schools of all faiths should be aware of the relevant legal framework when making and reviewing their uniform policies, to avoid any unnecessary challenges relating to religious dress.
The Sunday Times claims that in a survey it conducted nearly a fifth (18%) of 800 state primary schools in England include the hijab in their uniform policy: ‘mostly as an optional item’. Many of these schools are Islamic faith schools, but the hijab also appears as an optional item on uniform policies of, for example, some Church of England schools. Amanda Spielman, Chief Inspector of Ofsted has queried the hijab’s increasingly prevalent appearance on school uniform lists, questioning whether schools are breaching equality laws by requiring girls to wear hijabs, but not boys. There is also debate as to whether the wearing of the hijab by primary school girls could be regarded as sexualising young girls (as is widely known, the hijabs are traditionally worn by young women after puberty).
The statutory framework for maintained schools is found in section 21 Education Act 2002. It stipulates that governing bodies have a general responsibility for conduct of the school, which, when relating to uniform policies, means that they should promote the well-being of pupils at the school and community cohesion. Beyond this there is no specific legislation on uniform or appearance; it is therefore appropriate to consider the general duties under equality legislation and relevant case law.
The DfE has provided (non-statutory) guidance on the matter (School uniform – Guidance, September 2013), suggesting best practice for schools in developing their school uniform policy. It clarifies that it is for governing bodies (and it includes academy trusts) to decide on the use and content of school uniform. Specifically relevant to religious dress, the guidance states that pupils have the right to manifest a religion or belief, including the covering of the head. It is not unlawful for schools to list the hijab as an optional or compulsory item of clothing. In doing so though, schools are advised to ensure that they can justify these policies, whether this be on religious grounds or otherwise.
The leading case on challenges to uniform policies on religious grounds is R (Begum) v Headteacher and Governors of Denbigh High School (2006). The House of Lords concluded that the school’s decision not to allow the pupil, Begum, back to the school wearing the jilbab was not an exclusion, stating that it would only amount to such if the uniform policy was so unreasonable that it was unlawful. In that particular case, the school had a uniform policy which was acceptable to mainstream Muslim opinion, and which had been the subject of appropriate consultation with the school community. Faith schools should therefore ensure that when implementing uniform policies, they can clearly justify any potentially controversial items. Consultation is likely to be a useful tool to prevent future challenges.
The Technical Guidance for Schools in England (which oulines the requirements of the Equality Act for schools) offers useful guidance on the question of uniform policies. It emphasises that schools should refrain from rigid policies and to allow for flexibility to prevent discrimination, including making reasonable adjustments. For example, if a school has a compulsory policy that girls wear the hijab, it should be flexible in any alternative requests not to wear the item. This increased flexibility is likely to minimise any associated discrimination challenges or criticism surrounding the question of young girls being ‘sexualised’ by being ‘forced’ to wear the hijab by schools. Indeed, whether requiring, allowing or restricting the wearing of the hijab, schools should also be aware of variances in the views on dress code amongst Muslims, for example traditional differences between the Sunni and Shia sects (as many will know, the physical covering of the head when girls reach the age of puberty is one of many reasons women choose to wear the hijab – there are also reasons surrounding ethical barriers). Flexibility and a conscious awareness of the concerns surrounding these issues would help schools protect themselves from any associated challenges.
The issue of religious dress has increasingly been part of a questioning whether religious traditions, on the role of women in particular, are compatible with fundamental British values. Schools of all faiths should be alert to these issues. Crucially, faith schools need to ensure that they can justify their policies, and to offer flexibility, looking at the individual facts of each request to depart from any aspect of the policy, taking into account all relevant circumstances, and the specific location of the school.