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||Neutral Citation Number:  EWHC 1452 (Admin)
||Case No: CO/15368/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||17 June 2011
B e f o r e :
MR JUSTICE COLLINS
|| G (by his litigation friend)
||- and -
||The Head Teacher & Governors of St Gregory's Catholic Science College
Mr David Wolfe (instructed by Maxwell Gillott) for the Claimant
Mr Peter Oldham Q.C. (instructed by Bond Pearce) for the Defendants
Hearing dates: 10 & 11 May 2010
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Collins:
- This claim, which was lodged on 16 December 2009, concerns the lawfulness of the uniform policy applied by the defendants which, because the claimant was unwilling to comply with one aspect of it, meant he was unable to take up his place at the school. He was then aged 11 and was due to commence his secondary education at the defendants' school.
- The claimant is of African-Caribbean ethnicity. He has since birth not cut his hair and it is kept in cornrows. This is in accordance with his family tradition. Cornrows (sometimes called braids) are prohibited by the uniform policy of the school and so he was not permitted to attend school so long as he kept his cornrow style. In his claim, he contended that the prohibition on cornrows it was unlawful because discriminatory on sex and on race grounds. Further, he asserted that there had been a failure to give any advance notice of the ban on cornrows (since, it was said, the written uniform policy did not make it apparent that the ban existed). As a result of his mother's complaints, the ban on cornrows has now been made explicit. It was said that there should have been consultation before this change was made and there was accordingly a breach of his legitimate expectation that the policy which did not explicitly ban cornrows would be applied. There were further complaints that there had been a failure to follow guidance issued by the what was then the Department of Children Families and Schools (DCFS), now the Department of Education, and a failure by the defendants to discharge their equality duty (imposed by s.71 of the Race Relations Act 1976 and s.76A of the Sex Discrimination Act 1975 respectively and now contained in s.149 of the Equality Act 2010 which came into force on 5 April 2011).
- The claimant is now at a different school. The defendants assisted him in obtaining a place and he is happy there. He is able to retain his cornrow style and says:-
"I love my school, everyone is different and the teachers only care that I am learning, they don't have a problem with the way I look."
He had moved to the other school before this claim was lodged and so one of the grounds for resisting permission put forward in the defendants' Acknowledgement of Service was that the claim served no purpose: it was academic. It was also said that his mother had failed to pursue a complaint to the governors but had preferred to litigate. In addition, it was said that the claim was out of time.
- Kenneth Parker J granted permission for the claim to be pursued on 15 June 2010. While unusual, it is not impossible for a claim to be entertained even if it will bring no benefit to the claimant in that he or she will not obtain any concrete relief. So here, the claimant himself does not wish to be able to attend the defendants' school. However, it is said that there is an important issue to be decided, namely whether the no cornrow policy for boys is lawful if it is applied as it was to boys such as the claimant. Since Mr Oldham Q.C. had not in his skeleton argument sought to maintain that I should not consider the claim because it was academic I assumed that the defendants were concerned to know whether their policy or the manner in which it was put into effect was lawful. The claimant was, it was said, equally concerned to establish that there was unlawful discrimination in the maintenance of such a policy which would affect other schools and so have a damaging effect on others who were of the same ethnicity and held the same view as him.
- The Equality and Human Rights Commission (ECHR) applied for and on 23 September 2010 was granted permission to intervene. It instructed a Professor John to produce a report upon which it intended to rely to put forward written and perhaps, if it wished to apply to do so, oral submissions. Professor John's report was thoroughly unsatisfactory and, once obtained, should not have been relied on by the ECHR. I need not go into detail since the ECHR has accepted that it could not rely on the report, has withdrawn from the claim and is to pay the defendants' reasonable costs incurred in dealing with Professor John's report. Suffice it to say that those advising the ECHR showed a decided lack of judgment in serving Professor John's report and producing written arguments based upon it.
- In the circumstances, I was prepared to permit the claim to be argued. I made it clear at the outset that I was only concerned to decide whether the policy as applied by the defendants is unlawful because discriminatory. That meant that I should consider its lawfulness against the law as it now stood, namely under the Equality Act 2010. However, that Act, although not using precisely the same language as the Acts of 1975 and 1976, is no different in its effect since it (as did the previous Acts as amended) follows the European Directive of 2000. It followed that I was not concerned with the allegations of breach of legitimate expectation or the precise circumstances of how the school dealt with the claimant and his mother in September 2009. The claimant's beliefs and the reasons why he and his family were concerned to keep his cornrows are of course material. The defendants know from these proceedings why he is adamant that he should not be required to abandon his cornrows at school, but have continued to resist his claim. This, incidentally, shows that he would not have achieved anything by pursuing a formal complaint to the governors. They contend that their policy is not discriminatory either on race or sex grounds and, further, if there is indirect discrimination, it is justifiable. While therefore any failure to discharge the equality duty is not directly relevant to the present lawfulness of the policy, it is material if the defendants need to show that any indirect discrimination is justifiable.
- I should make it clear that I am not deciding whether on what the defendants knew at the time their decision was or was not lawful. Even if I decide that the present policy if applied to boys such as the claimant (having regard to his reasons for not wanting to abandon cornrows) is unlawful, it does not follow that the defendants acted unlawfully at the relevant time because all will depend on what they knew or ought to have known of those reasons. There are some factual issues raised on what was said and what information was given which I have not resolved nor could I resolve them. It emerged in the course of the hearing that a claim for damages based on discrimination had been brought in the County Court. If I decide that the policy as applied is and was lawful clearly that claim will go nowhere. If I decide that the policy as applied is unlawful, it will be for the county court judge to decide whether at the time the defendants knew or ought to have known that the claimant's case was such as required the policy to be modified in his favour. That will be likely to depend on what the judge finds as a matter of fact was told to the defendants and what, if any, steps the defendants should have taken to enable them to understand the claimant's position.
- I have referred to the policy in its application deliberately since Mr Wolfe rightly accepts that the defendants are entitled to adopt a uniform policy, including what haircuts are permissible, which is or may seem to be very restrictive or conservative. Thus he accepts that choice or a desire to adopt a particular fashion is no good reason to be permitted not to abide by the policy. The defendants for their part recognise (albeit nothing is said in the policy as to any such exception to it) that religious or medical reasons may justify an exception. Thus Rastafarians or Sikhs who do not cut their hair will be permitted not to conform. The question I have to decide is whether, on what is now said by the claimant, his mother and witnesses who have made statements on his behalf, he should have been allowed not to conform since to refuse to allow him to do so amounted to unlawful discrimination.
- I shall deal first with race discrimination. The legislation in force in September 2009 was contained in the Race Relations Act 1976 as amended. Section 1 of the Act defines what amounts to racial discrimination. It is not contended that there was direct discrimination, which is dealt with in s.1(1). Thus the relevant provisions are contained in s.1(1A) (which was inserted into the Act with effect from 2003 to comply with the EU Directive). This reads, so far as material:-
"(1A). A person discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (1B), he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but –
(a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons,
(b) which puts or would put that other at that disadvantage, and
(c) which he cannot show to be a proportionate means of achieving a legitimate aim
(1B) The provisions mentioned in subsection (1A) are …
(b) Sections 17 to 18D."
Section 17 makes it unlawful for the responsible body (that is to say in this case the governing body) of an educational establishment (which includes the defendants' school) to discriminate against a person
"(a) in the terms on which it offers to admit him to the establishment as a pupil or …
(c) where he is a pupil of the establishment – …
(ii) by excluding him from the establishment or subjecting him to any other detriment."
- The 2010 Act covers all types of discrimination. Section 19 deals with indirect discrimination, relating it to the various protected characteristics identified in s.19(3). Those include race and sex. S.19(1) and (2) read:-
"(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
(2) For the purpose of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if –
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) A cannot show it to be a proportionate means of achieving a legitimate aim."
- It will, I think, be apparent that the language used in the 2010 Act does not produce any different effect to that used in the 1976 Act. Neither counsel sought to argue that it did. Thus the law was the same in September 2009 as it now is in determining the existence of indirect discrimination (or, for that matter, direct discrimination which is said to be material when considering sex rather than race) and, if it exists, whether it is justified.
- The equivalent provision in the 2010 Act to s.19 of the 1976 Act is s.85. S.85(1)(b) and 2(f) reflect the relevant provisions of s.19 to which I have referred. I need not set them out.
- S.71 of the 1976 Act required a public authority (which includes the defendants) to have due regard to the need to eliminate unlawful discrimination. This obligation is now contained in s.149 of the 2010 Act, which is somewhat more detailed in setting out what may be required. Again, it is not necessary to set out the provisions in detail since Mr Wolfe contended that there was on the evidence a failure to comply with the duty in that the defendants did not consider or take any steps to advise themselves whether the relevant policy did eliminate unlawful discrimination.
- The DCSF has published guidance on uniforms and uniform policy for maintained schools. This, it is submitted, should have been followed since it would have enabled the defendants to comply with their s.71 duty. The relevant provisions are as follows:-
1. School uniform plays a valuable role in contributing to the ethos of a school and setting an appropriate tone. Most schools in England have a school uniform or dress code, and other rules on appearance. DCSF strongly encourages schools to have a uniform as it can instil pride; support positive behaviour and discipline; encourage identity with, and support for, school ethos; ensure pupils of all races and backgrounds feel welcome; protect children from social pressures to dress in a particular way; and nurture cohesion and promote good relations between different groups pf pupils. Above all, many schools believe that school uniform supports effective teaching and learning.
2. There is no legislation that deals specifically with school uniform or other aspects of appearance such as hair colour and style, and the wearing of jewellery and make-up, and this is non-statutory guidance. It is for the governing body of a school to decide whether there should be a school uniform and other rules relating to appearance, and if so what they should be. This flows from the duties placed upon the governing body by statute to conduct the school and to ensure that school policies promote good behaviour and discipline amongst the pupil body.
What should a school do?
4. A school should ensure that its school uniform policy is fair and reasonable. It should ensure that the uniform chosen is affordable and does not act as a barrier to parents when choosing a school. A school must have regard to its obligations under the Human Rights Act and anti-discrimination legislation. We strongly recommend that in setting its uniform/appearance policy the governing body:
- Consults widely on its proposed school uniform policy and changes to an established policy. As well as current pupils/carers, prospective pupils and parents/carers should be included in any consultation. Consultations should also include representatives of different groups in the wider community, such as community leaders representing minority ethnic and religious groups, and groups representing pupils with special educational needs or disabilities. Local authorities may have already prepared information and guidance for schools or may be able to conduct consultations on some issues on behalf of schools. An example is attached at Annex 1;
- Considers how the proposed uniform policy might affect each group represented in the school;
- Considers 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. The school will need to weigh up the concerns of different groups and it might not be practical to accommodate fully the concerns of all groups. For example, groups of children drawn from different parts of the same religious community may each have differing requirements, requiring several variations of school uniform if each were accommodated in full, which would not be practical.
- Documents 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: the school has a right to expect that long hair can be safely tied back for work in the science levorotary, or technology workshops. Similarly, it may be reasonable for a school to ban pupils from wearing jewellery where it considers this poses a risk of injury, or where it considers that wearing jewellery to school might place a pupil at increased risk of bullying and harassment;
- Security: the school needs to be able to identify individual pupils in order to maintain good order and identify intruders easily;
- Teaching and learning: if a pupil's face is obscured for any reason, the teacher may not be able to judge their engagement with learning, and to secure their participation in discussions and practical activities;
- Protecting young people from external pressure to wear clothing they would not otherwise choose to adopt, protecting them from harassment, and from having to adopt dress codes associated with extreme or anti-social elements in the wider community, including styles and colours of clothing associated with gangs;
- Promoting a strong, cohesive, school identity that supports high standards and a sense of identity among pupils; if some children look very different to their peers, this can inhibit integration, equality and cohesion;
- The need to promote harmony between different groups represented in the school;
- Describes its uniforms/appearance policy clearly and publicises it well, for example on the school website, in school rules, and in any admissions or general school prospectus. Rules on wearing school uniform may be included in the home school agreement. Pupils and parents/carers should receive information that makes them aware of school expectations before they are required to express a preference for a school;
- Considers 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;
- Considers carefully, once the uniform/appearance policy has been agreed, any request that is made to vary the policy to meet the needs of an individual pupil because of temporary or permanent medical conditions. For example, pupils with skin conditions may be unable to wear specific fabrics, and pupils with foot or leg injuries may be unable to wear school shoes. Further information is included in a training resource pack for schools and local authorities entitled Implementing the Disability Discrimination Act in schools and early years settings. Advice on how to access the pack is available from the Special Educational Needs and Disability section of TeacherNet.
Paragraphs 22 to 24 deal specifically with equality and discrimination issues. They read:-
- Cross references the school uniform/appearance policy against other relevant school policies, such as the behaviour policy."
"22. In formulating a uniform/appearance policy, a school will need to consider its obligations not to discriminate unlawfully on the grounds of sex, race, disability, sexual orientation and religion or belief. A school should also bear in mind the concept of 'indirect' discrimination. This involves the application of a requirement which, although applied equally to everyone, puts those of a particular gender, race, sexual orientation or religion or belief at a disadvantage because they cannot in practice comply with it. Such a requirement will need to be justified.
23. An example of indirect discrimination could be a school that bans 'cornrow' hairstyles. As these are more likely to be adopted by specific racial groups, banning this type of hairstyle without justification could constitute indirect racial discrimination.
Race equality policy
24. A school should consider its uniform/appearance policy in the context of its race equality policy; its obligation to promote equality of opportunity between pupils of different racial groups; and the requirement to assess the impact of school policies on pupils drawn from different racial groups."
While this guidance cannot and does not purport to indicate that any failure to follow it or any part of it will result in a finding of unlawfulness, it is clearly highly material. Paragraph 23 refers to the possibility that a policy which prohibits cornrows may be discriminatory and so should have put the defendants on inquiry. The defendants' case is that their policy is not in truth discriminatory but if it is, it is justifiable. As will become apparent, they rely in particular on the absence of any other complaints from pupils or applicants or their parents, and a general parental approval of their uniform policy. Thus they submit consultation would not have made any difference since the benefits flowing from the policy far outweigh any possible disadvantage to any individual.
The uniform policy in force in September 2009, a copy of which the claimant's mother had been given, contained the following introduction:-
"The Governors consider personal appearance of the greatest importance at ALL TIMES and all pupils are expected to be in full uniform, both at school AND on the way to and from school. It is the responsibility of all parents to ensure that their children arrive at school in accordance with the dress code of the school."
This follows rules relating to haircuts, which read:-
The Governors place a great emphasis on appearance and uniform. One aspect of an acceptable appearance is the haircut. This standard is difficult to maintain amongst the various fashions but we have clear rules – these refer particularly to boys.
Hair should not be so long as to fall below the collar.
No 'Skinhead' or shorn hairstyles.
Hair should be cut uniformly all over without creating a crop or layered effect.
No razor cuts so as to create lines or designs across the hair or eyebrow.
Nothing outlandish – in colouring and so on.
Wax / Gel cannot be worn on the hair.
Extensions are not allowed. (If Trichological reasons see Head of Year)."
There are specific uniform rules which dictate what boys and girls respectively can and cannot wear. The only one relevant to hair states that for girls long hair must be tied back. But for black African and African-Caribbean girls cornrows are permitted since they are regarded by the defendants as conventional in girls but not in boys. Further according to the headmaster, Mr Andrew Prindiville, it has been the school's experience that some black girls find it more difficult to tie back long hair, which needs to be done for safety reasons in for example some science classes, and cornrows avoid this problem.
The policy did not specifically refer to cornrows. However, at the reception meeting for new pupils the cornrow ban was stated. Unfortunately, the claimant and his mother were late arrivals and did not hear the announcement nor had they been told earlier any more than the policy. Thus the first they knew of the ban was the refusal to allow the claimant to attend unless the cornrows were removed. There were discussions about the possibility of the claimant cutting his hair or trying to meet the policy by removing the cornrows (his hair was not it seems beyond collar length), but they had not achieved any positive result. So it was that the claimant was unable to take up his place at the school.
The present rules about hair style are as follows:-
"Hair must be clean, neat and of a moderate style (boys must not wear braids). Peculiar and bizarre styles are quite unacceptable. These styles include, for example, hair that falls below the collar (for boy's), wearing of hair extensions, bleached, dyed, tinted or highlighted hair, closely cropped or shaved hair, and patterns and lines cut into the hair. Furthermore pupils must be clean-shaven at all times and the shaving of eyebrows is not acceptable. Pupils whose hairstyles are unacceptable will not be admitted to school and risk disciplinary action."
Braids are now expressly forbidden for boys. The general requirement is that 'hair must be clean, neat and of a moderate style'. Mr Wolfe has submitted that cornrows meet this general requirement and so it is not appropriate to prohibit them for boys rather than girls simply because it is considered that they are not conventional for boys. This argument is, as will become apparent, more material in the context of Mr Wolfe's submissions in relation to sex discrimination, but it could be said to be relevant more generally. However, I do not think it assists in the context of race discrimination since, apart from the sex difference, cornrows would be prohibited since they are not regarded as conforming to the policy which, in common parlance, might be described as short back and sides.
The school has published policies on Equality and Diversity and on Race Equality. It is in the London Borough of Brent and in one of the most ethnically diverse communities in the United Kingdom. The vast majority of its pupils are not white and those of African-Caribbean or African ethnicity constitute over 30% of the total of 1027 pupils. There are particular concerns in the area about gang culture (which is predominately a male problem). This must be kept out of the school and the uniform policy is believed to assist in this aim. The school has received outstanding grades in the 2009 Ofsted report in respect of pupil safety and behaviour, pupils' spiritual, moral, social and cultural development and the effectiveness with which it promotes equality of opportunity and tackles discrimination. I must make it clear that there is and can be no suggestion that the school is in any way knowingly guilty of any racial or other discrimination. The contrary is the case. It has an excellent record. Mr Wolfe has not sought to suggest the contrary. Thus any unlawful discrimination which may be found to exist results from a failure to appreciate fully what the law requires and honest errors.
Mr Prindiville has made two lengthy statements. The first explains the rationale behind the uniform policy and why it is believed that cornrows for boys should not be permitted. The second was produced to deal with Professor John's report. That is now unnecessary, but there are some matters in the second statement which are relevant to the reason for the school's policy. As its name indicates, the school is a Catholic school and, as is stated in its Race Equality Policy, it 'strives to educate all its pupils within an environment where the Catholic traditions of learning, truth, justice, respect and community are promoted'. The majority of pupils are Catholic, but it is not essential that they should be. Hence, the recognition that Sikhs or Rastafarians may need special treatment in relation to their hair. However, there are no pupils falling into those categories.
A major concern has been to keep any gang culture out of the school and to avoid the ethnic tensions and violence which so often accompany it. Mr Prindiville says that the aim is to make the school a place where the pupils are first and foremost safe and valued equally: this is not always the case outside the school gates. As the Ofsted report shows, this aim is being achieved. And, says Mr Prindiville, it 'accords with our very strong Catholic ethos. Pupils are taught to see the school as a community in which are all (sic) equal and made in the image of God.' He summarises the position thus:-
"As I will explain our uniform and haircut policy for students other than sixth formers is a critical part of our strategy for maintaining excellent behaviour, for keeping gang mentality out of the school and for ensuring that students do not adopt attire or haircuts that may encourage that mentality. I should add that when I refer to the uniform policy … I am including a reference to our policy on haircuts. "
That overall the approach is successful is, he says, confirmed by the Ofsted report, which states:-
"Equality of opportunity is at the heart of the school's work and the impact is outstanding. Outcomes for students are good, with minimal unevenness between different groups. There is no evidence of discrimination."
Mr Prindiville explains the reasons which have led the school to apply their uniform policy. In paragraphs 24 to 30 of his first statement, he says:-
"24. Moreover, I believe that a Uniform Policy is particularly important for our school because of the cultural diversity of our students, the gender mix of our school, and the social pressures that boys, especially, experience outside of school, in particular to join a gang. Boys at the school talk freely about the need to plan their travel arrangements very carefully as they may be assaulted if their journey takes them into an area that is not "their own". Clearly, as a school we are determined to ensure that outside, largely male gang culture has no place in our school and we believe that we have been successful in doing so. It is our belief that our Uniform Policy plays a critical role in ensuring that the culture associated with gangs of boys in particular, e.g. haircuts, bandanas, jewellery, hats, hoodies, etc has no place in our school.
25. Moreover, distinctive haircuts can, I believe, be badges of ethnic or gang identity in an aggressive or unwelcome sense and can help foster disunity rather than unity. For example, the school ban on shaven heads is part of a conscious determination to avoid white boys, whether English or, say, Eastern European, adopting any form of "skin head" styles with all the negative, and sometimes racist, connotations that go with this. Consequently we adopt a zero tolerance approach to all male hairstyles other than those permitted by our haircut policy.
26. If we were to make an exception for one particular hairstyle (whether skinhead, patterned, cornrows or any other) we would, I believe, no longer justify a zero tolerance approach to all the various "popular culture hairstyles' students might request to have.
27. I must stress that I do not regard these as speculative or uncertain matters. I am very well acquainted with severe behavioural problems which abound in many schools in London and further afield, and the reasons for them. I have no doubt that that a less conservative approach to uniform than ours often contributes to these behavioural problems. Similarly I know that if we were to allow one hairstyle such as skinhead, patterned or cornrows, boys and their families would be vociferous in their demands to be allowed to wear others.
28. We believe that such haircuts have no place in our school. Furthermore the "pop culture" associated with gangs of boys e.g. haircuts, bandanas, jewellery, hats, hoodies, etc are not part of a Catholic ethos, and in some respects (in particular the violence and other criminality which is often associated with it) this culture is inimical to such an ethos.
29. To this end, therefore, we require boys to adopt what many might describe as a traditional school boy haircut or a "short back and sides". This also necessarily means that there are a variety of hairstyles which can be worn by girls but not boys including cornrows, ponytails, pigtails, bunches etc.
30. I should make it clear that I am not saying that wearing cornrows are to be especially identified with gang culture. What I am saying is that if we ere to permit the wearing any particular non traditional haircut, such as cornrows, this would lead to a huge pressure to unravel the strict policy that we have adopted and which is a vital part of our success in keeping out of our school influences which have no place there – gang culture and pop culture."
He observes in his second statement (paragraph 62) that he tries 'to consider the individual person. Whether and the extent to which braiding is a matter of cultural/ethnic significance for a person cannot in my view be assumed, and will I think probably depend from individual to individual'. That is an entirely valid observation, but the problem is that the school is not apparently prepared to allow cornrows for boys even if they are a matter of cultural or ethnic significance. And it is that that is relied on by Mr Wolfe in support of the claimant's case that there is indirect racial discrimination.
For this claim to succeed, the claimant must show that the policy can result in discrimination within the meaning of the legislation and that, in the circumstances there is a particular disadvantage to the claimant in the prohibition on cornrows. If he establishes this, it is for the defendant to justify the discrimination. Mr Oldham submits that the policy as a whole must be considered and, as I understand him, it is not permissible to consider in isolation one element of the policy. It is far from clear how that could in practice work. Is there to be some sort of de minimis rule? But it is misconceived. If an aspect of a policy is discriminatory, the policy is to that extent tainted. Further, there have been a number of claims which have concerned a single element of a uniform policy – see for example R(Watkins-Singh) v Aberdare High School  EWHC 1865 (Admin) (refusal to permit the wearing by a Sikh girl of the Kara) and Eweida v BA  1 ICR 303 (uniform policy prohibiting wearing of a cross over clothing). Thus if discriminatory and if not justifiable, the prohibition of cornrows is unlawful and the policy to that extent is itself unlawful.
In Watkins-Singh  ELR 561 (to which I shall have to refer in more detail) Silber J (paragraphs 39 and 40) said that it was necessary to identify the relevant 'provision, criterion or practice', to use the statutory language. In paragraph 39 he said this:-
"It is common ground that the relevant 'provision, criterion and policy' in this case is the school's uniform policy which is made up of the written policy, details of how it was applied and the school's approach to the recognition of exceptions to its general policy. There is also no dispute that the relevant 'provision, criterion or practice' was that only one pair of plain stud ear rings was allowed to be worn and that no jewellery beyond that was allowed unless the item was required to be worn as a compulsory requirement of the pupils' religion or culture. "
So here, the relevant provision, criterion or practice is the prohibition on boys below the sixth form wearing cornrows.
Mr Oldham makes the point that there must be a group of persons who are adversely affected by the prohibition. It is not enough that one family has its own special views. This point was considered in Eweida. Elias, P said this at p.316-317 (paragraphs 59 to 63):-
"59. We agree with Ms Simler's submission. In our judgment, the whole purpose of indirect discrimination is to deal with the problem of group discrimination. The starting point is that persons of the same religion or belief as the claimant should suffer the particular disadvantage, distinct from those who do not holds that religion or belief, as a consequence of holding or practising that religion or belief. The claimant must share that particular disadvantage because otherwise she could not show that she was a victim; the provision would not adversely affect her. But in our judgment it is not enough for a claimant to identify a disadvantage which she personally suffers and which others not sharing her belief do not, and than establish liability merely by discovering – anywhere it seems – a like minded soul who shares her belief so that he or she would be similarly disadvantaged if employed in similar circumstances by the employers.
60. In our judgment, in order for indirect discrimination to be established, it must be possible to make some general statements which would be true about a religious group such that an employer ought reasonably to be able to appreciate that any particular provision may have a disparate adverse impact on the group.
61. It is conceivable that a particular specialist religion, perhaps a subset of a major religion, may operate in a particular region or locality and employers in that area may have to cater for that belief even though employers elsewhere do not. But there must be evidence of group disadvantage, and the onus is on the claimant to prove this. We recognise that this means that if someone holds subjective personal religious views, he or she is protected only by direct and not indirect discrimination. There is hardly any injustice in that if the purpose of indirect discrimination is to counter group disadvantage and there is none.
62. In this case, the tribunal found no evidence at all of group disadvantage. It is true that they focussed upon whether there was a barrier and did not consider the possibility that there may be disadvantage even with respect to some who chose to comply, or would be willing to comply, with the provision. However, in our judgment there is no possibility that the tribunal could have found the necessary group disadvantage in any event. The claimant did not adduce any evidence that some who complied with the provision did so despite objecting to the provision on religious grounds, and in our judgment there was no proper basis for making an assumption that such persons would necessarily exist.
63. Ms Moore may be right to say that it is almost inconceivable that there will not somewhere be some other persons who share the beliefs of the claimant, but that possibility would not in our view be anywhere near sufficient to establish the necessary degree of disparate impact or group disadvantage."
That case concerned alleged discrimination on religious grounds, but the principle applies equally to any type of discrimination.
Even if the evidence shows that there is a group who are disadvantaged, the claimant cannot, submits Mr Oldham, establish that he would suffer the particular disadvantage that the law requires. His evidence does not meet the test which, he submits, following observations of Silber J in Watkins-Singh, requires that the wearing of cornrows is for him a matter of exceptional importance. Mr Oldham further submits that in any event English law does not recognise that voluntarily adopted socio-cultural practices associated with a particular race can amount to race discrimination.
The claimant is seeking to establish that there is a group of which he is a member which does suffer particular disadvantage if forbidden to wear cornrows. He relies on his and his mother's evidence and the evidence of two expert witnesses. Dr Richard Majors, an educational psychologist and a visiting Associate Professor at the University of Colorado in the USA, has studied and has considerable experience in many aspects relevant to African, African-Caribbean and African American culture. Braids have been historically a practice in West Africa, Ethiopia and Egypt, each tribal region having its own traditional style and unique design signalling status, kinship, age group, religious vital and village application. But, more importantly for the purposes of this claim, he states:-
"Historically, cornrows, braids and plaits were also worn for appearance and grooming purposes by slaves. For example, enslaved house servants wore cornrows, braids and plaits to appear well-groomed. Many slaves after capture who had their heads shaved for hygiene reasons – when free – grew their hair into braids or dreadlocks (e.g. long strands of hair that have been twisted closely from the scalp down to the tips) in defiance of the slave master."
He continues (paragraph 12):-
12. Cornrows have intergenerational values as well. Hair braiding is an ancient art-form handed down from generation to generation. Hence, hair braiding has historical/cultural significance to black culture and family. From a very young age, members of many African tribes wear their hair styles in braids or knots. Members in a tribe have their hair groomed by older female relatives, mothers, sisters, cousins and aunts. Also, I know families in both the US and Britain who have a family tradition (i.e. non-religious beliefs) where the men in the family wear their hair in cornrows, plaits and braids and do not cut their boys' hair. There are examples of such family traditions as well in the Caribbean. "I know a number of families in the Caribbean where it is taboo for young boys to have their hair cut" (Marcia Elliot, Sept 27,2010, telephone interview, Hairdresser, Morris Roots, Hair Salon, London).
Haircutting in this context is unacceptable because hair is viewed as sacred by these families. These families wear their hair for non-religious reasons, rather than for religious beliefs. "
He also makes the point that, while cornrows are worn more often by women, they are not exclusively for women only and it is common for young boys and men to wear them.
Mr Simon Hepburn, who is of Black Caribbean ethnicity, is Chief Executive of the Advisory Centre for Education. He states:-
"From my experience and knowledge all of the above hairstyles (viz: short back and sides, plaits, cornrow and dreadlocks) are traditional and conventional especially for Black Caribbean boys more than for Black African boys. Periodically one of these hairstyles became very popular and 'fashionable' but within some families they will have and want to maintain a family tradition, which often goes back for decades and is not part of 'popular fashion'. In these situations popular fashion has caught up with a 'family tradition'"
Mr Aloysius Frederick is chairman of the Governors of the defendants' school. He is of Black Caribbean ethnicity. He approves the policy and says he has never heard any complaint from a parent concerning the prohibition on cornrows. But he says this:-
"As an African-Caribbean man growing up, I used to have my hair in cornrows as part of the fashion of the day. It was easy to groom. I personally did not regard it as part of my culture or a badge of my ethnicity but I recognise that other people might take a different view about hair styles."
He seems to be recognising that there are some who do regard cornrows as a badge of their ethnicity.
Thus there is evidence that there are those of African-Caribbean ethnicity who do for reasons based on their culture and ethnicity regard the cutting of their hair to be wrong and so they need it to be kept in cornrows. It may be that those who regard it as an obligation rather than a preference are in a minority, but on the material before me I am satisfied that there is a group who could be particularly disadvantaged by a refusal to permit them to wear their hair in cornrows.
The claimant has not cut his hair since birth. In his family, as his mother states, all men wear their hair in cornrows. There was criticism of the absence of a statement from the claimant himself and a suggestion that he was being run by his mother. This she denies and he has produced a statement. Mr Oldham criticises it as not being in the form of a statement of truth. I am not impressed with those criticisms and see no reason to doubt the honesty of what he says. He confirms the family approach, adopted by all his male cousins. The claimant says this:-
"I really like my hair and its been that way all my life, this problem at school was the first time me and my mom, ever talked about my hair, its so normal to us. I just don't see a problem with it. I have had my hair all my life. I really like my hair my brother and dad have cornrows and we all like it. I really don't want to cut it off this was the first time I had to ask the question, 'whats' wrong with my hair. "
He concludes, after indicating how happy he is at being at a school with people who are culturally different:-
"Every race has differences, in religion and culture, the plaiting is ours, and I would like to keep it, it's the one thing I really like, and the best part was when I saw my idol, David Beckham, cornrow his hair, it showed me that he appreciated African hair styling, and that we are all the same underneath it all."
His statement was, his mother says, his own. He was not coached in any way. He was not prepared to have his hair cut despite wanting to start at the school: he was proud to have been accepted there. Unless cut or in cornrows, his hair, being an African-Caribbean, would have stuck up and could not have conformed to the policy.
Mr Oldham has submitted that his and his mother's evidence falls short of establishing a cultural or ethnic need to maintain his cornrows. He relies particularly on the Watkins-Singh case. The comparators to the claimant are those boys whose racial beliefs are not compromised by the uniform code on the issue of cornrows – see per Silber J at paragraph 46. Silber J decided for the reasons given in paragraphs 51 to 55 that the threshold was set too high in the defendants' submission and that there was not a need for the claimant to establish that it was a requirement of her religion to wear the Kara. In paragraph 56 he set out the tests to be applied in these words:-
"On the facts of this case, I believe that there would be 'a particular disadvantage' or 'detriment' if a pupil is forbidden from wearing an item when (a) that person genuinely believed for (sic) reasonable grounds that wearing this item was a matter of exceptional importance to his or her religious belief and (b) the wearing of this item can be shown objectively to be of exceptional importance to his or her religion or race, even if the wearing of the article is not an actual requirement of that person's religion or race."
In paragraph 57 he continues:-
"I stress that I am not saying that there will only ever be 'a particular disadvantage' or 'detriment' if these elements are proved as obviously there will be other cases in which those requirements are satisfied in different ways. There is therefore both an objective element in (a) and an objective in (b). My conclusion is that on the facts of this case, I believe because elements (a) and (b) are satisfied, there will be a particular disadvantage' or 'detriment' if the claimant is not allowed to wear the Kara."
Mr Oldham emphasises the need for the claimant to establish the exceptional importance to him of his cornrows, which follow from his not cutting his hair. He contrasts the evidence of the claimant in Watkins-Singh in which she said that in her mind the Kara was 'one of the defining physical symbols of being a Sikh'. For her, to wear it resulted from a sense of duty and was an expression of her race and culture. This, Mr Oldham submits, is very different from what the claimant says. He puts it no higher than that he likes his cornrows and has always worn them.
The words used by Parliament are 'a particular disadvantage'. The adjective 'particular' is obviously intended to indicate that what is recognised is more than a disadvantage – that would apply if a person was unable to act in a way in which he or she wished to act because, for example, it was considered to be a desirable way of manifesting his or her beliefs. It is clear that more than choice is needed to constitute a particular disadvantage. But I think, with the greatest respect to Silber, J, it may be that the need to show exceptional importance puts the threshold too high. Certainly there is a need to show particular importance: that is the word used, and it conveys a need for a high standard.
Silber J was impressed with the fact that the claimant continued to wear the Kara even though she suffered sanctions for doing so. In this case, the claimant was not prepared to have his hair cut in order to be able to attend the school. He suffered what clearly was a traumatic experience in being turned away on his first day. Thus I am satisfied that, whether or not exceptional rather than particular importance is the right test, he meets the threshold. He has therefore suffered a particular disadvantage.
I turn to consider the argument that English law does not recognise that voluntarily adopted socio-cultural practices associated with a particular race can amount to race discrimination. Mr Oldham has sought assistance from a case decided by a federal judge in New York, Rogers v American Airlines 527F Supp 229. This concerned cornrows at work. The head note shows the issues in that case. It was held that the rule prohibiting cornrows did not violate the 13th Amendment to the Constitution which prohibited practices which constituted a 'badge of slavery'. The claimant had first worn cornrows only after the style had been popularised by an actor and 'the plaintiff did not allege that an all-braided hair style is worn exclusively or even predominately by black people'. The claim failed on its facts, but the judge did make the point that the law was directed only to discrimination on grounds of race, colour, religion, sex or national origin. 'National origin' was not to be confused with ethnic or socio-cultural traits.
I do not find that case helpful. It concerns different legislation. It is, I think, worth recalling what is required for a group to constitute an ethnic group within the meaning of the Act of 1976. In Mandla v Dowell Lee  2 AC 548 (a case concerning a school uniform policy requiring boys' hair to be no longer than collar length with which the plaintiff could not as a Sikh comply) at p.582 Lord Fraser of Tullybelton said this:-
"For a group to constitute an ethnic group in the sense of the Act of 1976, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these characteristics are essential; others are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the meaning of which it keeps alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance."
Relevant characteristics included a common geographical origin and being a minority group within a larger community. Thus family and social customs can be a 'part of ethnicity' within the meaning of the Act. That is the case here.
Thus I reject Mr Oldham's argument. It seeks to distinguish cultural and family and social conditions from ethnicity, but they are often part of what brings a person of a particular ethnicity within the particulars of the Act. In a case such as this, that distinction cannot properly be made. Further, I am satisfied that in deciding as I have I am not making any new law.
Having found that there is indirect discrimination, I must now consider justification. Performance of the equality duty is of relevance in establishing justification. The purpose of the duty is to require public bodies to whom it applies to give advance consideration to issues of race discrimination before making any policy decision that may be affected by them: see per Arden LJ in R(Elias) v Secretary of State for Defence  1 WLR 3213 at paragraph 274. She observed:-
"This is a salutary requirement and this provision must be seen as an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation."
Absence of any reference to an examination of the material issues is not determinative – it is necessary to look to whether the decision maker has in substance had due regard to the relevant statutory need (see observations of Dyson LJ in R(Baker) v SSCC  EWCA Civ 141 at paragraph 27). It is of significance that the DCSF guidance specifically refers to the possible discrimination arising from a prohibition on cornrows. Mr Wolfe submits that, had the necessary exercise been carried out as suggested by the guidance, the defendants would have been able to ascertain whether there was a need to grant exception to the policy in particular cases. It is clear that the equality duty was not fulfilled, but that does not of itself mean that the policy was not, to use the statutory language, a 'proportionate means of achieving a legitimate aim'.
The defendants rely heavily on the absence of any complaints about the prohibition of cornrows. Some boys did arrive to start school with cornrows and were told that they must be removed. All, other than the claimant, complied. In addition, since the claimant's case was given publicity, there have been no complaints. Thus it is said that prior consultation would not have resulted in any different approach and the defendants were entitled to regard their policy as proportionate even though one person was adversely affected by it.
The problem of course is to know why all who conformed and did not complain acted as they did. The school's policy is not one which is applied in some other local schools, as the claimant's experience shows. It may be that those who had the same views as the claimant appreciated that there was no point in applying to the defendants' school. It may be that those who complied were prepared to accept the disadvantage in order to get a place in an excellent academic establishment. While I accept that the absence of any complaints is a material factor, it cannot be determinative. And, as I accept, there may be reasons why there have been no complaints which do not mean that there has not been a particular disadvantage to some who hold similar views to the claimant. Advance consultation might have painted a different picture.
The aim of the policy was clearly legitimate. I must emphasise that Mr Prindiville is not saying and has never said that cornrows are indicative of any gang membership or culture. The point he makes is, as he puts it in paragraph 30 of his first statement:-
"What I am saying is that if we were to permit the wearing any particular non traditional haircut, such as cornrows, this would lead to huge pressure to unravel the strict policy that we have adopted and which is a vital part of our success in keeping out of our school influences which have no place there – gang culture and pop culture."
The concern is that to permit an exception for one hairstyle would mean that it would not be possible to justify a zero tolerance approach to others. There would be likely to be applications from others for example to allow 'skin head' cuts as they are common in some eastern European cultures. It is said that to allow such as the claimant to wear cornrows would mean that the policy which was producing the desired results would be undermined and so the school would be expected to run the risk of trouble.
I am afraid I do not find these objections valid. It is only if there is a genuine cultural and family practice of not cutting males' hair and wearing cornrows that an exception could be made. It would be made clear that the grounds for such an exception would have to be established and that conformity must occur unless to conform was regarded as impossible. There is no reason why hairstyles which might be indicative of gang culture should be permitted. There is, for example, not a shred of evidence to suggest that anything but choice could lead to a skin head cut.
It was accepted by Mr Oldham that religious reasons could justify non compliance. It is not suggested that that would undermine the policy. I see no difference in principle between those exceptions and the claimant's case. It will be made clear what are the limitations on non-conformity.
The uniform policy is not applied to sixth formers in the same rigid fashion. Some have from time to time chosen cornrows. The school has sought to dissuade them and has succeeded. No doubt those below the sixth form know that the policy is not applied in the same way to sixth formers. I see no good reason why they should not know the limitations or any other exception. And it will no doubt be made clear that any hairstyle which does not conform to the policy will only be permitted if the pupil and his family persuade the headmaster that there is a genuine particular requirement based on ethnicity or religion or medical grounds for it.
I am accordingly not persuaded that the indirect discrimination which the prohibition on cornrows produces is justified.
I turn to consider the claim based on sex discrimination. The essence of discrimination is that there is less favourable treatment of a male compared to a female. Here, it is said that girls are allowed cornrows, largely because they can wear their hair longer than boys, and so there is no good reason why boys should not be allowed the same.
The correct approach to consideration whether uniform policies (including hairstyles) amount to sex discrimination, bearing in mind that in respect of clothing, wearing of jewellery and hairstyles there are differences between men and women and girls and boys, has been indicated by the Court of Appeal in Smith v Safeway Plc  ICR 868. That case concerned a rule that male employees could not have hair which was below collar length and the refusal to permit the appellant to wear his hair in a pony tail. The EAT had decided that to distinguish between permissible length of hair for male and female staff was discriminatory. The Court of Appeal disagreed.
Discrimination does not necessarily arise from different treatment of sexes. It will only exist if one or other sex is treated less favourably. The court accepted that, as counsel for Safeway had submitted:-
"Rules concerning appearances will not be discriminatory because their content is different for men and women if they enforce a common principle of smartness or conventionality, and taken as a whole and not garment by garment or item by item neither gender is treated less favourably in enforcing that principle."
In paragraph 13, Phillips LJ said this:-
"In my judgment, a package approach to the effect of an appearance code necessarily follows once one accepts that the code is not required to make provisions which apply identically to men and women. Phillips J held that this was the approach more likely to lead to a sensible result in that case and in cases like it. I agree. This is not to say that when applying the test, the requirement of one particular item of a code may not of itself have the effect that the code treats one sex less favourably than the other. But one has to consider the effect of any such item in the overall context of the code as a whole."
A code will not be discriminatory if it applies a conventional standard of appearance.
What is to be regarded as conventional may well vary as time goes by and will depend on the facts of a particular case. Smith's case did depend on a finding of fact by the tribunal that pony tails for men were not to be regarded as conventional. Whether that would apply in 2011 may be open to doubt, but that does not affect the validity of the approach that the law requires.
There can be no doubt that it is not uncommon for African-Caribbean boys and men to wear cornrows. The claimant's solicitors sent an employee around a number of African-Caribbean hair salons in Brent and her evidence shows that all regarded cornrows for boys as normal. Thus, submits Mr Wolfe, cornrows for boys are accepted by general usage and so should be regarded as conventional.
Cornrows for African-Caribbean girls were recognised as acceptable because they were a satisfactory means of keeping long hair neat and under control. The fact that all girls can wear them whatever the length of their hair does not affect this basic rationale behind permitting them. And there are reasonable views based on safety considerations that it is easier for African-Caribbean girls to wear cornrows then to tie their hair back when the need arises. The claimant's mother disagrees, but the school's view is one it is entitled to have and is based on its experience.
In this context, the approach set out in Smith that the policy as a whole rather than item by item should be considered is of importance. A policy requiring no longer than collar length hair for boys and, more generally, a conservative short back and sides is reasonable. It is said to have produced satisfactory results. Thus I do not think that the cornrows difference means that boys are treated less favourably than girls. Furthermore, although cornrows for boys are by no means unusual, I am not persuaded that the defendants are wrong to regard them as not being conventional.
In my judgment, there is no unlawful sex discrimination. The claimant is protected by the indirect race discrimination. I see no good reason why a choice of cornrows should be permitted on grounds of sex discrimination. A rigid appearance policy at a school is clearly entirely reasonable provided it complies with equality law.. Permitting long hair for girls and not for boys may be regarded as discriminatory since boys nowadays not unusually wear their hair longer. But I have no doubt that 'not unusual' does not equate to conventional and an appearance policy such as the one operated by the defendants is not discriminatory albeit it applies different rules to girls than for boys.
In the result, I reject the claimant's arguments that there is sex discrimination but accept that the policy as now applied can result in indirect race discrimination. For someone having the views held by the claimant it is discriminatory. But, as I have said, that does not necessarily mean that there was an unlawful refusal to accept the claimant in cornrows in September 2009. That will depend on what the defendants knew or ought to have known at the time.
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