What are schools’ legal obligations regarding school uniform? Legal Expertise answers your questions

In the first issue of Legal Expertise we have decided to look at school uniform. Over the last two years there have been a number of legal challenges mounted to aspects of school uniform policies and in response the DCFS issued new comprehensive guidance to schools last month. However, last week news broke of a further legal challenge relating to the rights of pupils to wear religious symbols, this time from a 14-year-old Sikh pupil whose school has barred her from wearing a silver Kara bangle, one of the five symbols of Sikh identity.

Is it now a legal requirement to have a school uniform?

No, there is no legislation that deals specifically with school uniform or other aspects of pupil appearance. Instead it falls to a school’s governing body to decide on their approach to school uniform as part of their responsibility to oversee the running of the school under section 21 of the Education Act 2002 and also their duty to ensure that school policies promote good behaviour and discipline among the pupil body under section 88 of the Education and Inspections Act 2006. However, in new guidance to schools on school uniform and related policies (4th October 2007), the DCSF strongly encourages schools to have a uniform as they believe it supports effective teaching and learning.

What are the legal obligations upon schools in respect of uniform policy?

Schools must always act fairly and reasonably in their approach to uniform policy. In particular they must have regard to their legal obligations under the Human Rights Act 1998 which protects the right to manifest one’s religion or beliefs. Various religions require their adherents to conform to a particular dress code or to otherwise outwardly manifest their belief. It will be possible for many religious requirements to be met within a uniform policy and schools must act reasonably in accommodating such requirements. However, importantly the freedom to manifest a religion or belief does not mean an individual has the right to manifest their religion at any time, in any place or in any particular manner.

This has been confirmed in three recent legal cases relating to schools and their uniform policies. In R (on the application of Begum) v. Governors of Denbigh High School (2006), a 14-year-old pupil challenged the school’s decision to not allow her to attend the school whilst she was wearing the jilbab, a full length dress worn by devout Muslim women. In R (on the application of X) v The headteacher of Y School and another (2006) a 12-year-old pupil challenged the decision of the school’s headteacher to not permit her to wear the niqab, an Isalmic face veil. Most recently in R (on the application of Playfoot) v Millais School (2007) the pupil challenged the school’s decision not to allow her to wear at school a “purity ring” symbolizing her belief in celibacy before marriage. In each case the court found that the school’s approach was justified and so did not breach the right of the pupils concerned to manifest their religion.

So will banning religious dress always be justified?

No, each case will depend on the circumstances of the particular school and it is for each school to determine what sort of uniform policy is appropriate for it. In terms of the approach a school should take in the initial step of setting or changing its uniform policy, the guidance recommends a detailed consultation process with current and prospective pupils and their parents or carers. In addition, representatives of different groups in the wider community should be consulted, taking care to identify community leaders representing minority ethnic and religious groups. An overarching part of the process is that a school should thoroughly document the consultation process undertaken, the points made by respondents, and the decisions made in weighing up competing points of view. This documentation will be very important should a legal challenge ever arise.

What does the school need to do after the consultation is completed?

The next step is to assess whether the proposed policy amounts to an interference with the right to manifest a religion or belief. Schools have to exercise a discretion here that might involve them deciding that the needs of individual groups are outweighed by other factors. Factors specifically identified in the guidance include the need for health and safety, security, effective teaching and learning, to protect pupils from external pressure to wear clothing they would not otherwise choose to adopt, to promote a strong and cohesive school identity and to promote harmony between different groups represented in the school. As was approved in the legal cases this process might lead to a school’s uniform policy legitimately prohibiting certain items of clothing or manners of appearance.

What other legal obligations should I be aware of in this area?

As well as the Human Rights Act 1998, schools need to be aware of their legal obligations under the Sex Discrimination Act 1975, the Race Relations Act 1976, the Disability Discrimination Act 1995, the Equality Act 2006 and the Equality Act (Sexual Orientation) Regulations 2007.

So what can a school do if a pupil contravenes its uniform policy?

It is important to remember that even when a school has agreed and implemented its uniform policy it must still carefully consider any request that is made to vary the policy to meet the needs of an individual pupil. This is not only to accommodate their religious belief but also any temporary or permanent medical conditions, in order to avoid breaches of disability discrimination legislation.

However, with that caveat, a headteacher or person authorised by the headteacher has the right to send a pupil briefly home to put on the correct uniform or otherwise adjust their appearance in line with the school’s uniform policy. The school must first inform the pupil’s parents and consider factors such as the pupil’s age, vulnerability, availability of the parent and how easily the breach can be remedied. When this is done it will constitute an authorised absence. It is very important that the pupil is not sent home indefinitely or for longer than necessary to remedy the uniform offence, otherwise this could amount to an unofficial exclusion, which is unlawful.

Schools also have the right to exclude a pupil for uniform offences, even where they do not otherwise display poor behaviour, but only where the breaches of the school’s uniform policy are persistent and defiant. However, it is important that schools are considerate and reasonable and look discreetly at the particular circumstances of individual cases, taking into account the possibility that the uniform has been lost, stolen or damaged or that the pupil’s parents are in financial difficulties.

I understand that schools also need to ensure that their school uniforms are widely available and reasonably priced?

Yes, this is another aspect of the requirement that schools act fairly and reasonably in this area. A school must ensure that the school uniform is affordable and does not act as a barrier to parents when choosing a school. The stakes are high. The DCSF has said that they will take action against schools that have a uniform policy which is needlessly and prohibitively expensive. Expensive uniform policies may fall foul of the Code of Practice on School Admissions which places a statutory duty on governing bodies to ensure that their policies and practices do not disadvantage any children. Furthermore the Office for Fair Trading has already written to schools warning them that exclusive contracts with suppliers may contravene the Competition Act 1998 on the grounds that such exclusive agreements may restrict competition between retailers to supply uniform.

This e-bulletin issue was first published in November 2007

About the author: Mark Blois is the editor of Legal Expertise and the author of this issue. He is a Partner and Head of Education at Browne Jacobson. Mark is named as a leader in his field in both Chambers and Legal 500, is an Executive Committee member of the Education Law Association and is an LA governor at a special school in Nottingham.