The minefields of school uniforms

VWV's Tracey Eldridge-Hinmers looks at how schools can establish a school uniform policy that promotes equality

Posted by Hannah Vickers | March 10, 2017 | Law, finance, HR

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School uniform, we are told, plays an invaluable role in contributing to the ethos of a school and setting an appropriate tone. Indeed, many school leaders believe that school uniform supports effective teaching and learning, promoting good behaviour and discipline among the pupil body. 

In establishing and policing a uniform policy, schools need to consider the interests of all pupils, paying attention to race, sex, religion and sexual orientation. There is no legislation that deals specifically with school uniform or other aspects of appearance such as hairstyle, the wearing of jewellery and make-up, although the DfE issued guidance in September 2013 which still holds good today.

It is for the governing body to decide on an appropriate uniform policy having taken into account the requirements of the Equality Act 2010 and the Human Rights Act 1998; this is where the main issues come to the fore as evidenced by a long line of cases involving the wearing of items of jewellery and clothing as an expression of religious belief.

Symbols of religious observance?

Over the years, the courts have dealt with issues surrounding the wearing of items of jewellery and clothing as symbols of religious observance in considering the jilbab, the niqab, the purity ring and the Kara bangle. More recently, the wearing of the Kirpan in school and the issue of beards for Muslim male pupils have been litigated.

In the House of Lords case of R (Begum) v Denbeigh High School [2006], Shabina Begum claimed that her right to education was denied when her school said that she could not wear the jilbab (a long, flowing robe covering all but the hands) believed by some Muslims to be a religious requirement.  

Her case failed. Shabina Begum had chosen the school in the full knowledge of its uniform policy, which limited her freedom to wear a jilbab. In these circumstances, it was said, she accepted the system present in the school which limited her freedom.  She was free to manifest her religion by attending an alternative school, which did allow the wearing of the jilbab; and she eventually did. The school was found to have consulted widely when drafting its uniform policy; the governors had consulted with the local community, including the local mosque, parents and pupils.

In R (X) v (Y) School [2007] a Muslim pupil challenged her school over its refusal to allow her to wear the niqab, a face veil.  It was argued on behalf of the girl that her religion required her to cover her face in the presence of men, other than close family members. Although the school uniform policy did not expressly forbid the niqab her claim failed because, as in Begum, there was another school available that did allow the wearing of the niqab. 

In establishing and policing a uniform policy, schools need to consider the interests of all pupils

The Kara bangle was first considered in the R (Sarika Watkins-Singh) v The governing body of Aberdare School [2008].  The Kara, a small bangle worn by Sikhs as a sign of their faith and identity, did not meet the uniform requirements of the school, which refused the request for an exemption from the policy and took disciplinary action for “open, deliberate and persistent defiance of the school’s authority”.  

When the matter came before the High Court, it was noted that the school had not taken proper account of the fact that Sikhs are a racial group (Muslims or Christians are not) and are therefore covered by Race Relations legislation, now found in the Equality Act 2010.

The court was satisfied that Watkins-Singh was an observant Sikh and that wearing the Kara was particularly important for her. The uniform policy that prevented the wearing of the Kara put Sikhs at a disadvantage that would not apply to another racial group; because Sikhs were likely to be treated differently to other racial groups, the uniform policy amounted to indirect discrimination. A distinction was drawn between the jilbab and niqab garments and ‘the unostentatious Kara which is very small and still permits the wearer to wear every other aspect of the uniform policy’.

However, the wearing of the Kirpan in school, a sword or knife carried by Sikhs, has recently become an issue, not least because the traditional Kirpan is some 3–9 inches long. Schools are able to place restrictions on a pupil’s right to religious expression, if it can be justified to ensure the effective delivery of teaching and learning, the promotion of cohesion and good order in the school, the prevention of bullying, or genuine health and safety or security reasons. 

In another jewellery case, Lydia Playfoot argued that the wearing of the purity ring was a manifestation of her religious belief as a Christian, ‘demonstrating her personal commitment to sexual abstinence prior to marriage as an expression of her personal faith’. The Court found that she was not obliged by her religious faith to wear the ring, and that the school had offered other means by which she could express her belief.

Uniform policy as sexual discrimination

In 2011, 12-year-old Chris Whitehead hit the headlines when he wore a girl’s knee-length skirt to school in protest at the school uniform policy which banned boys wearing shorts during the summer. He argued that in the summer months girls were allowed to wear skirts, but boys were not allowed to wear shorts, and this amounted to sex discrimination. The school’s Head claimed that the ban on shorts was introduced after consultation with pupils, teachers and parents in 2009; but acknowledged that there was nothing in the uniform policy which prevented boys wearing skirts!  

Many schools have now introduced sexually neutral uniform policies in order to prevent such challenges, whilst also recognising their duties towards transgender pupils, enabling them to wear clothing in which they feel most comfortable.   

There have been other concerns about girls in particular wearing provocative clothing to school; this led one headmaster to spend £400 on 80 pairs of tailored trousers for girls who turned up wearing particularly tight-fitting trousers. Another school in Scotland has considered it necessary to advise families not to dress their schoolchildren in short skirts and tight trousers amid fears that they could be targeted by paedophiles. The school has said: “A modest school uniform is more appropriate than fashion skirts, trousers or tops.”

DfE guidance and best practice

The DfE guidance recommends that a school should ensure that its school uniform policy is fair and reasonable and that the uniform chosen is affordable and does not act as a barrier to parents when choosing a school. In setting its uniform policy the governing body is advised to: 

● Consult widely on its proposed school uniform policy and changes to an established policy. 

● Consider how the proposed uniform policy might affect each group represented in the school.

● Consider the concerns of any groups about the proposed policy, and whether the proposed policy amounts to an interference with the right to manifest a religion or belief, and whether it is discriminatory. 

● Consider the timeframe for introducing a new uniform policy or amending an existing one. 

● Consider the cost and availability of non-standard sizes.

● Consider the cost of including branded items and items in unusual colours/shades before insisting they must be worn, and continually review the cost of these items.

● Document the consultation process undertaken, the points made by respondents, and the decisions taken in weighing up competing points of view. The school might decide that the needs of individual groups are outweighed by factors such as health and safety; security; teaching and learning; protecting young people from external pressures; promoting a strong, cohesive, school identity that supports high standards and a sense of identity among pupils; and the need to promote harmony between different groups represented in the school. 

● Describe its uniform/appearance policy clearly and publicise it well.

● Consider carefully, once the uniform/appearance policy has been agreed, any request that is made to vary the policy to meet the needs of any individual pupil to accommodate their religion or belief or because of temporary or permanent medical conditions. 

● Cross reference the school uniform/appearance policy against other relevant school policies, such as the behaviour policy.

● Consider carefully the risk of a challenge to the policy and consider appropriate insurance cover.

Tracey Eldridge-Hinmers is a senior associate at leading education law firm Veale Wasbrough Vizards. T: 0207 665 0802 E: teldridge-hinmers@vwv.co.uk