Wearing religious symbols in school has become a sensitive and increasingly public issue, in relation to correct school uniform. Mark Blois looks at a recent case and explains the legal position and the implications for schools

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

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

1. What was the situation in this case?

Sarika Watkins-Singh, aged 14, is of Welsh-Punjabi origin and attended a maintained girls’ school in Wales. She was the only Sikh among 600 girls. The school uniform policy permitted only one pair of plain ear studs and a wristwatch to be worn by pupils. Sarika sought an exemption to the uniform policy to allow her to wear the Kara, a plain steel bangle, which is one of the ‘five Ks’ of Sikhism (five symbols, the names of which all begin with ‘k’, and which are regarded by Sikhs as sacred articles of faith). Sarika saw wearing the Kara as an important indication of her faith. The school refused to grant that exemption and stated that Sarika would not be allowed to wear the Kara at school, a decision which was upheld by the school governors on appeal on 26 October 2007. The claimant was subsequently excluded for ‘open, deliberate and persistent defiance’ of the school’s policy, and then commenced proceedings, backed by Liberty, on 19 December 2007.

2. Why did this claim succeed where others have failed?

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

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

3. What does the law say on this matter?

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

4. Can there be discrimination even where the item in question was not a religious requirement?

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

5. Does this judgement mean that some school uniform policies may unlawful?

This is very unlikely. In this case there was no allegation that the school’s uniform policy itself was unlawful, rather it was alleged that in deciding whether to grant an exemption to that policy the school had failed to consider the racial and religious aspects of their decision, which it had mistakenly regarded as completely distinct from uniform policy.

6. Does this mean schools must now allow all religious clothing and symbols?

No: The Judge drew a ‘very sharp distinction’ between the current claim and the previous school uniform cases, which had related to very visible and ostentatious religious dress. On this basis he concluded that the school was unable to justify the above discrimination as a means to achieving the advantages of a uniform policy and that they had therefore subjected the claimant to racial and religious discrimination.

7. What will effect will this judgement have on schools?

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

As a result of the media attention afforded to this case, schools can expect an increase in the number of pupils seeking exemptions from uniform policy on grounds of identity and faith and will need to give careful consideration to the merits of each individual case and seek legal advice where appropriate.

This e-bulletin issue was first published in January 2009

About the author: Mark Blois