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Mark Blois, Partner

Mark Blois, Partner

t:0115 976 6087

f:0115 947 5246

mblois@brownejacobson.com

 

 

David Maggs, Partner

David Maggs, Partner

t: 020 7539 4931

f: 020 7836 3882

dmaggs@brownejacobson.com

 

 

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High court Sikh bangle decision forces school uniform re-think

5 August 2008

 

Introduction

In recent years a number of school girls have brought legal challenges against their schools when they have been prevented from wearing items related to their religious faith. The items in question have included the Jihab, the Niqab veil and a purity ring. Each of these actions has been founded on an alleged breach of the pupils’ human rights and all of these claims have failed.

 

On 29 July 2008 Mr Justice Silber handed down judgment in the case of Watkins-Singh –v- The Governing Body of Aberdare Girls’ High School and Rhondda Cynon Taf Unitary Authority, the latest of these challenges to the legality of the application of school uniform policies. This time judgment was made in favour of the claimant.

 

Background

Sarika Watkins-Singh, aged 14, is of Welsh-Punjabi origin and attended a maintained girl’s school in Wales. She was the only Sikh among 600 girls. The school uniform policy permitted only one pair of plain ear studs and a wrist watch to be worn by pupils. Sarika sought an exemption to the uniform policy to allow her to wear the Kara, a plain steel bangle, which is one of the five K’s of Sikhism and which she saw as an important indication of her faith. The school refused to grant that exemption and stated that Sarika would not be allowed to wear the Kara at school, a decision which was upheld by the Governors on appeal on 26 October 2007. The claimant was subsequently excluded for “open, deliberate and persistent defiance” of the school’s policy and then commenced proceedings, backed by Liberty, on 19 December 2007.

 

The claim

The claim did include allegations that the failure to grant the claimant an exemption and the imposition of disciplinary sanctions had contravened her human rights under Article 8, the right to family life and Article 12, the right to freedom from discrimination. These claims failed. However, in contrast to her predecessors, this claimant also relied on the totally different provisions of the Race Relations Act 1976 (RRA) and the Equality Act 2006 (EA) in alleging that the decision of the school to refuse to allow her to wear the Kara at school had been unlawful for being indirect, unjustified race and religious discrimination.

 

The law

The RRA provides that there should be no direct or indirect discrimination based on racial or ethnic origin. The EA prohibits discrimination on grounds of religion or belief in protected activities. In considering the claimant’s case under either the RRA or EA it was necessary for the court, inter alia, to consider whether the provisions or practice of the school uniform policy placed the claimant at a “particular disadvantage” or caused her to suffer a “detriment”.

 

The school argued that this would only have been the case where the claimant had been prevented from wearing something which was a compulsory requirement of her religion and therefore she could not show the appropriate degree of “disadvantage”. However, the Judge found that there was a lower threshold applicable under the RRA and EA legislation, explaining that if a pupil considers for objectively reasonable grounds that the Kara both demonstrates and reminds them of their faith then they should be allowed to wear it, especially where there is powerful objective evidence supporting the pupil’s view within the religion concerned.

 

The Judge went on to draw a “very sharp distinction” between the current claim and the previous school uniform cases which had related to very visible and ostentatious religious dress. On this basis he concluded that the school was unable to justify the above discrimination as a means to achieving the advantages of a uniform policy and that they had therefore subjected the claimant to racial and religious discrimination.

 

The Judge also found that there had been a “total failure” by the school in adopting, maintaining and enforcing a policy to comply with its positive obligations under section 71 of the RRA, to promote equality of opportunity and good race relations and discourage discrimination.

 

Comment

This is a decision that will require the urgent consideration of Head Teachers and Governing Bodies on their return from the summer break although, as the Judge was keen to stress, this judgment is fact-sensitive and does not concern or resolve the issue of whether the wearing of the Kara should be permitted in the schools of this country, there are still lessons to be learned from this case. Schools have understandably come to rely heavily on recent judicial comment and DCSF guidance that human rights legislation does not require pupils to be allowed to manifest their religion at any time and place of their choosing and that exemptions to uniform policy may only be necessary where an item is required to be worn as a compulsory requirement of the pupil's religion or culture.

 

However, that is only part of the legal picture. In this case there was no allegation that the school’s uniform policy itself was unlawful, rather it was alleged that in deciding whether to grant an exemption to that policy the school had failed to consider the racial and religious aspects of their decision, which it had mistakenly regarded as completely distinct from uniform policy. As a result of the media attention afforded to this case, schools can expect an increase next year in the number of pupils seeking exemptions from uniform policy on grounds of identity and faith and will need to give careful consideration to the merits of each individual case and seek legal advice where appropriate.

 

For more information on the judgment and the application of school uniform policies, please contact Mark Blois or David Maggs.

 

The content of this bulletin is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.