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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.
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