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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Watkins-Singh, R (on the application of) v Aberdare Girls' High School & Anor  EWHC 1865 (Admin) (29 July 2008)
Cite as:  EWHC 1865 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of Sarika Angel Watkins-Singh (A child acting by Sanita Kumari Singh, her Mother and Litigation Friend)
|- and -
|The Governing Body of Aberdare Girls' High School
Rhondda Cynon Taf Unitary Authority
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Jonathan Auburn (instructed by Evans Quartermaine of Caerphilly) for the Defendant
The Interested Party was neither present nor represented
Hearing dates: 17-19 June 2008
Numerous further written submissions from 20 June 2008 until 11 July 2008
Crown Copyright ©
Mr Justice Silber :
II The Facts
"Jewellery often poses a health and safety hazard to school activities. Pupils are allowed to wear a wrist watch and one pair of plain metal studs in the ear. No other jewellery is permitted. All jewellery must be removed for PE and swimming. Body piercing is not permitted. Adhesive jewellery to teeth or any part of the body is not allowed. Pupils will have excess or unacceptable jewellery confiscated".
"1. The panel has not been convinced that, as part of her religion, it is a requirement that Sarika wears the Kara (bangle) on her wrist. It is suggested that, as an alternative, it is possible that it could be worn/carried elsewhere on her person.
2. If it was to be allowed as an exception to the school rules, it is felt that there is a possibility that Sarika may be singled out as being different from her peers and that such actions may result in bullying or similar repercussions.
3. The wearing of the Kara would give rise to health and safety issues. This would require a risk assessment being conducted prior to a variety of lessons being undertaken, this assessment may require the removal of the item which again would single the pupil out".
III. The Significance of the Kara to Sikhs
IV The Issues
a) the decisions of the school (whether by the Hearing Panel of the defendants on 20 July 2007 and or the Appeal Panel on 26 October 2007 or subsequently) to refuse to allow the claimant to wear the Kara at school was unlawful as indirect, unjustified race and religious discrimination (Issue A) (see paragraphs 32 to 92 below);
b) the defendant has not complied with its obligations under sections 71 of the RRA in adopting, maintaining and enforcing a uniform policy which had "due regard" to the need (i) to discrimination unlawful racial discrimination; and (ii) to promote equality of opportunity and good relations between persons of different racial groups (Issue B) (see paragraphs 93 to 123below);
c) the imposition of the disciplinary sanctions and in particular the internal segregation and isolation imposed on the claimant contravened her rights under Articles 8 and or 14 when read with Article 8 of the ECHR(Issue C) (see paragraphs 124 to 137 to below);
d) the exclusions imposed and the procedure devised by the defendant in November 2007 failed to follow the requisite procedures required by law and were procedurally unfair (Issue D) (see paragraphs 138 to 153 below);
e) the Head Teacher of the school failed to take into account of the Guidance on Exclusions from Schools and Pupil Referral Units 2004 ("the 2004 Guidance") and/or failed to follow it and or failed to give reasons for departing from it in reaching her decisions formally and informally to exclude the claimant (Issue E) (see paragraphs 154 to 159 below); and
f) the conduct of the Discipline Committee's hearing of 22 January 2008 breached the requirement of the regulations, departed from the Statutory Guidance without good reason, and breached natural justice.The defendant correctly accepted that this complaint was justified with the consequence that there has to be a further hearing and so I need not say anything more about it.
V Issue A Indirect discrimination
"(1A) A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (1B), he applies to that other as 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 that other at that disadvantage, and
(c) which he cannot show to be a proportionate means of achieving a legitimate aim".
"A person ("A") discriminates against another ("B") for the purposes of this Part if A applies to B a provision, criterion or practice-
(a) which he applies or would apply equally to persons not of B's religion or belief;
(b) which puts persons of B's religion or belief at a disadvantage compared to some or all others (where there is no material difference in the relevant circumstances).
(d) which puts B at a disadvantage compared with some or all persons who are not of his religion or belief (where there is no material difference in the relevant circumstances) and
(e) which A cannot reasonably justify by reference to matters other than B's religion or belief."
"it is unlawful for the responsible body of an educational establishment listed in the Table to discriminate against a person –
(a) in the terms on which it offers to admit him as a pupil,
(b) by refusing to accept an application to admit him as a pupil, or
(c) where he is a pupil of the establishment –
(i) in the way in which it affords him access to any benefit, facility or service,
(ii) by refusing him access to a benefit, facility or service,
(iii) by excluding him from the establishment, or
(iv) by subjecting him to any other detriment".
a) to identify the relevant "provision, criterion or practice" which is applicable;
b) to determine the issue of disparate impact which entails identifying a pool for the purpose of making a comparison of the relevant disadvantages;
c) to ascertain if the provision, criterion or practice also disadvantages the claimant personally; and
(d) whether this policy is objectively justified by a legitimate aim; and to consider (if the above requirements are satisfied) whether this is a proportionate means of achieving a legitimate aim.
(ii) What is the relevant "provision, criterion or practice"?
(iii) Which is the pool for the purpose of making a comparison of the relevant disadvantages?
"202… The wider pool brings into the exercise of comparison people who have no interest in the particular advantage who will actually want the particular benefit in question".
"4…The situation must be such that, gender apart, the situation of the man and the woman are in all respects the same".
"44… whose sincere religious cultural beliefs or practices, or religious beliefs or practices are not compromised by the [Uniform] Code, as compared to those whose beliefs or practices are compromised".
(iv) Disparate Disadvantage or Detriment?
"181.. in Chapman,… the court also observed that there could be said to be an emerging international consensus amongst the contracting states of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle, not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community".
(a)"…when the genuineness of a claimant's professed belief is in issue in the proceedings, the court will inquire into and decide this issue as an issue of fact…";
(b)"…the court is concerned to ensure an assertion of religious belief is made in good faith 'neither fictitious, nor capricious and that it is not an artifice'…";
(c)"..emphatically it is not for the court to embark on an inquiry into the asserted belief and judges its "validity" by some objective standard such as the source material upon which the claimant founds his belief or the orthodox teaching of the religion in question or the extent to which the claimant's belief conforms to or differs from the views of other professing the same religion…"; and that
(d)"…the relevance of objective factors such as source material is, at most, that they may throw light on whether the professed belief is genuinely held".
"a sense of duty to wear the Kara …as well as an expression of my race and culture".
"at most ... may throw light on whether the professed belief is genuinely held".
"in my extensive experience of working with and studying Sikhs, of the 5 Ks the Kara is a symbol most commonly worn by Sikhs as an external identifier of Sikhism".
"181.. in Chapman, the court also observed that there could be said to be an emerging international consensus amongst the contracting states of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle, not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community"; and
"186... the court has noted in previous cases that applicants may have difficulties in proving discriminatory treatment. In order to guarantee those concerned the effective protection of their rights, less strict evidential rules should apply in cases of alleged indirect discrimination".
(v) Proportionality and Justification
"in my judgment "justifiable" requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition".
"the standard of justification in race discrimination is the more exacting EC test of proportionality... the objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. So it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group. It is not enough that [the party discriminating] could reasonably consider the means chosen as suitable for attaining that aim" (R (Elias) v Secretary of State for Defence  1WLR 3213 at 3249 ).
"..the courts as guardians of the right of the individual to equal respect, will carefully examine the reasons offered for any discrimination."
"164…that the measure in question corresponds to a "real need" and that the means adopted must be "appropriate" and "necessary" to achieving that objective. There must be a "real match" between the end and the means. The court must "weigh the justification against its discriminatory effect" with a view to determining whether the seriousness of the alleged need is outweighed by the seriousness of the disadvantage to those prejudiced by the measure always bearing in mind that the more serious the disparate impact the more cogent must be the objective justification"
a. the contention that allowing pupils to wear a Kara causes substantial difficulties because they stand out. There is no question of being unable to identify and notice a pupil wearing a Kara whilst somebody wearing the niqab or the jihab is very noticeable;
b. the point that the decision not to grant an exemption from the uniform policy for the claimant to wear the Kara would assist in minimising difference of wealth and style and the pressures which result from marking differences of wealth. Miss Rosser explains that it avoids social pressures and competition; the suggestion in Playfoot that the restriction preventing the wearing of a ring in that case minimised pressures resulting from differences of wealth and style. These arguments do not apply in the present case because the Kara is such a small piece of steel that it cannot be perceived as costing much especially when its cost is compared with the cost of the watches which pupils are allowed to wear;
c. the justification for decision not to permit the claimant to wear the Kara is that the uniform policy fosters a community spirit among the girls whilst also promoting their identity as part of an individual school. Miss Rosser, who makes that point, also explains that it maintains discipline and preserves respect. I readily agree that these matters can in the appropriate case justify a particular uniform policy (see Begum and , X v Y School  and Playfoot) but I do not accept that they apply to the very unostentatious Kara which is small and usually hidden from view by the claimant wearing a long-sleeved garment. Apart from wearing the Kara, the claimant is quite content to conform with all aspects of the school's uniform policy; and
d. a "floodgates" argument by saying that if non-compulsory items (such as the Kara) were allowed to be worn by pupils, then other pupils would all demand to be allowed to wear all other manner of items. I am unable to accept this argument because the claimant in this case falls in an exceptional category because it was a matter of exceptional importance to her as a Sikh to wear the Kara; She has reasonable grounds for her genuine belief that wearing the Kara is a matter of exceptional importance to her when the wearing of it can be shown to be objectively of exceptional importance to her religion or race and where it has a deep significance for adherers of that religion or members of that race even if not a requirement of that religion or race. Miss Rosser refers to the wearing of a crucifix as being of similar importance to wearing the Kara but there is no evidence that the wearing of it is regarded in the same way as the wearing of the Kara. In other words the school is not justified in having any fear that granting an exemption to the claimant to allow her to wear the Kara would create any further exceptions. Again it is worth repeating that there are many schools in which the wearing of a Kara is permitted to be worn.
"53…Although the Court recognises that it is possible that tension is created in situations where a religious or any other community becomes divided, it considers that this is one of the unavoidable consequences of pluralism. The role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism but to ensure that competing groups tolerate each other".
"have due regard to the need- (a) to eliminate unlawful racial discrimination; and (b) to promote equality of opportunity and good relations between persons of different racial groups".
(a)"it is committed to working towards race equality, promoting approaches to differences and fostering respect for people of all cultural backgrounds". The policy goes on to state that at the school they encourage pupils "to respect the values of cultures and which [sic] they are unfamiliar. We ensure that every pupil develops a sense of identity that is receptive and respectful to other cultures".
and (b) that:
"our curriculum promotes the respect for other cultures, celebrates diversity and educates against racism, our teaching challenges racial prejudice and stereotypes and fosters a critical awareness of biased, inequality and injustice".
(vi) Conclusion on indirect discrimination
VI Issue B. Section 71
"(1) Everybody or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need-
(a) to eliminate unlawful racial discrimination; and
(b) to promote equality of opportunity and good relations between persons of different racial groups.
(2) The Secretary of State may by order impose, on such persons falling within Schedule 1A as he considers appropriate, such duties as he considers appropriate for the purpose of ensuring the better performance by those persons of their duties under subsection (1)".
"(1) A body specified in Part I or II of Schedule 2 to this Order shall, before 31st May 2002,
(a) Prepare a written statement of its policy for promoting race equality (referred to in this article as its "race equality policy") and
b) Have in place arrangements for fulfilling, as soon as is reasonably practicable, its duties under paragraphs (3) or (4) as the case may be.
(2) Such a body shall,
(a) Maintain a copy of the statement, and
(b) Fulfil those duties in accordance with such arrangements.
(3) It shall be the duty of a body specified in Part 1 of Schedule 2 to this order to –
(a) Assess the impact of its policies, including its race equality policy, on pupils, staff and parents of different racial groups, including, in particular, the impact on attainment levels of such pupils, and
(b) Monitor, by reference to their impact on such pupils, staff and parents, the operation of such policies, including in particular their impact on the attainment levels of such pupils…"
"it is the clear purpose of section 71 to require public bodies to whom that provision applies to give advance consideration to issues of race discrimination before making any policy decision that may be affected by them. 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…"
(iii)The steps taken by the defendant to comply prior to the implementation of the new policy which is to be assumed to be on 1 July 2007
"14….We … have a Race Equality Policy at the school. This was originally adopted in July/July 2002 [sic]. It was then reviewed with regard to all pupils and the whole school community in July 2005, October 2005, and March 2006. A new draft was published in July 2007 and this is due to be reviewed annually the next occasion being summer 2008."
"Preparing your race equality policy and keeping it up to date",
"Steps to preparing your race equality policy" and
"Steps to maintaining your race equality policy over time".
"3…our Governors considered .. decided was appropriate .. and adopted in July of 2002. … I can confirm that the policy in question was adopted and used at the school from that date until Summer 2007 when a new policy was drafted".
"4. Leadership, Management and Governance.
The School's commitment to equality for all is reflected in our Equal Opportunities Summary and the school's mission statement:
`… [LEFT BLANK BY DEFENDANT] …'.
... The Governing Body includes Equalities issues (including Race Equality) as an item on the agenda of all Governing Body meetings and has a governor with responsibility for Equalities, who is (… [LEFT BLANK BY DEFENDANT] …)
People with specific responsibilities
… The named person with responsibility for dealing with reported incidents of racism and racial harassment is (…[LEFT BLANK BY DEFENDANT] …)
The Equal Opportunities Co-ordinator is (… [LEFT BLANK BY DEFENDANT] …)"
a. the need to reconsider the uniform code in the light of the obligations in section 71(1) or the race equality policy at any time before the claimant tried to wear the Kara to school;
b. the fundamental importance of wearing the Kara to the claimant's religion and race. The defendant and the School (i) did not consider the obligations in section 71(1) or the race equality policy and (ii) did not appreciate but should have appreciated that by not allowing the claimant to wear the Kara because it was not a requirement of being a Sikh, they were not "having regard" to those obligations and that policy;
c. that the wearing of the Kara was a matter of exceptional importance because (i) the claimant genuinely believed for reasonable grounds that wearing this item was a matter of exceptional importance to her racial identity or her religious belief and (ii) the wearing of this item can be shown objectively to be of exceptional importance to her religion or race, even though the wearing of the article is not an actual requirement of that person's religion or race. In a witness statement, Mr. Peter Scott a Governor of the school stated that he chaired the meeting on 13 June 2007 concerning the claimant's application to wear the Kara and he explained that wearing the Kara was seen as "roughly similar" to displaying the Welsh flag because "that is something which engenders emotion, perhaps strong emotion but is not something which either her religion or culture requires her to wear". I regard this as a seriously erroneous comparison because it totally ignored the critically important religious and racial significance of the Kara as described in paragraphs 24 to 27]above and it shows a disregard for the basis and rationale of section 71; and
d. valid reasons for permitting the claimant to wear the Kara but instead the defendant decided not to permit the claimant to wear the Kara for reasons which I explained in paragraphs 77 to 86 have no validity.
(iv) The steps taken by the defendant to comply after the implementation of the new policy which has to be assumed to be on 1 July 2007.
"it is felt that there is a possibility that [she] may be singled out as being different from her peers and that such actions may result in bullying or similar repercussions".
"The Panel decided that [the claimant] had displayed persistent and open defiance of the school's uniform policy when all other avenues for solving the uniform dispute had been exhausted"
(iv) Conclusions on section 71
VI. Issue C Article 8
(ii) Is Article 8 engaged?
"When I was in isolation I felt very unhappy, singled out and alone".
"usually very content and again she never displayed any visible signs of emotion to indicate to me that she was upset about her being in isolation. She seemed perfectly normal to me and was quite happy within herself. During lunchtimes usually I and another member of staff would have our lunch in a different room with her and again she seemed very content".
"a very nice young lady. She is chatty, friendly and seemed quite content...I remember conversations that we used to have about her interests and hobbies… she presented as a polite, well adjusted girl who was happy despite the circumstances prevailing at the time".
VII. Issue D Procedural unfairness concerning fixed-term exclusion
"The head teacher must without delay take reasonable steps to inform the relevant person of the following matters –
i) the period of the exclusion or; if the pupil is being permanently excluded that he or she is being so excluded;
ii) the reasons for the exclusion;
iii) that he or she may make representations about the exclusions to the governing body and that the excluded pupil may also make representations about the exclusion to the governing body where the pupil is not the relevant person; and
iv) the means by which such representations may be made".
"The head mistress did not suspend this child at all. She was always perfectly willing to take her in; all that she wanted was that she should be properly dressed. Suspending is refusing to admit to the school; in this case the head mistress was perfectly willing to admit this girl but was insisting that she be properly dressed".
"39. To the [pupil], of course, the case appeared differently: she was being effectively shut out from attending the school by the school's insistence on her compliance with an unjustified rule with which it knew she could not comply. That is not a view of the case which I have accepted, but had it been the correct view (as in another case, on quite different facts, it might) there could be a force in the contention that she was, de facto, excluded. It may be, and of course one hopes, the situation of this kind is a very rare occurrence. I am not, however, sure that it is adequately covered by the existing rules."
"82 …was, in my view a decision taken on disciplinary grounds. The [pupil] was not prepared to abide by the school uniform rules. The decision was taken for that reason. But, none the less, it was not, in my opinion, an "exclusion" of [pupil] for section 64 purposes. A section 64 exclusion is a direction to the pupil to stay out of school. No such direction was ever given to [the pupil]. She was not directed to stay away: she was directed, and encouraged, to return wearing the school uniform. The decision that she would not return was her decision (or that of members of her family), not that of the school. In contrast to a pupil subject to a section 64 exclusion [the pupil] could at any time have returned to the school. This was not in my opinion, a section 64 exclusion".
VIII Issue E Failure to follow exclusion guidance or to give reasons for departing from it
"There is an expectation that the guidance will be followed unless there is a good reason to depart from it".
Mr. Justice Silber
"very pleased with Sarika's progress and she should be congratulated for her achievements".