Case study 2: School Uniform Policies

An urban education authority is in the final stages of planning the opening of a new, non-denominational secondary school. The school catchment area is ethnically and religiously diverse and it is likely that a significant number of disabled pupils will also attend.

The head teacher, in partnership with the school board, is now due to develop a uniform policy for the school. This policy will set out what is, and what is not, acceptable in terms of dress for all pupils attending the school. It is intended that the policy will be enforced and a failure to conform with the policy could potentially lead to disciplinary action including exclusion. “Dress” is interpreted as comprising both clothing and jewellery.

Task

How should the head teacher design the consultation phase to ensure that a range of voices are heard? What factors may need to be taken into account when balancing rights whilst ensuring that the final policy has a proper basis in law, and is necessary and proportionate?

Using the questions below, follow the FAIR model to develop your response:

Facts: What are the important facts?

• Are there specific, potentially disproportionate, negative impacts on particular groups including those with protected characteristics?

• Which individuals and groups need to be heard?

• What sources of evidence (qualitative and quantitative) could be used to assess the current and future impacts of the policy options?

When gathering the facts:

1. What methods would you use to ensure that those affected by the policy are consulted and involved in decisions that affect them, in an active and meaningful way?

2. Can you identify any of the individuals or groups who are likely to need support to engage with you, and if so, who will provide that support?

3. What information will those affected by the policy need in order to be able contribute effectively to the consultation process?

Analysis: what are the human rights at stake and what are the implications of the policy for compliance with the Equality Act?

• What are the human rights issues at stake?

• Are the rights absolute?

• Can the right be restricted and if so, what is the reason for the restriction in this case

• If the right is being restricted, is the response proportionate?  (I.e. is it the minimum restriction necessary to achieve your objective – or is it a “sledgehammer to crack a nut”?)

• From the evidence gathered, are the protected groups likely to be treated less favourably than others by the policy?

• If the policy applies to everyone, are the protected groups likely to suffer a particular disadvantage compared with other groups?

• Is the policy designed to achieve positive benefits for protected groups? For example, will the policy remove or minimise disadvantage, meet particular needs or encourage participation?

• What is the potential impact on “good relations”- that is the “promotion of understanding and the reduction of prejudice.”

Identification of shared responsibilities

• What changes if any, are necessary to the policy that would mitigate any negative impact of the policy?

• Who has responsibilities for helping with any necessary changes?

Review actions and policy

• Have the actions taken been recorded?

• How often, and in what circumstances, will the policy be reviewed and by whom?

FEEDBACK SHEET FOR CASE STUDY 2: SCHOOL UNIFORM POLICIES

The important fact in this case is that the school uniform policy will be applied to everyone who attends the school, and so you must consider whether it might engage some pupils human rights (such as freedom of expression or religion/belief) and whether it might disadvantage some protected groups (for example pupils from particular faith/religious groups).

The primary protected groups who could be affected by this policy are: boys and girls (in terms of having a gender neutral or gender specific dress code); certain religious groups (who may be required to wear symbols or adhere to dress codes as a requirement of the faith); disabled pupils who may need adjustments to be made to comply with the dress code; and pupils who may be in transition between genders.

The primary human rights Articles at stake here are freedom of thought, conscience and religion/belief (Article 9), the right to education (Protocol 1, Article 1) and the right to freedom of expression (Article 10). Both freedom of expression and freedom to manifest one’s religion are qualified rights which means that public authorities may interfere with these rights in certain limited circumstances. However this is only possible where the authority can show that its action has a proper basis in law, and is necessary and ‘proportionate’ in order to protect public safety, public order, health or morals or to protect the rights and freedoms of other people.

A ‘proportionate’ response is one that is no more than is necessary and appropriate and not excessive in the circumstances.

The focus for any policy development from both an equality and a human rights perspective would be the extent to which the policy has a negative impact on different groups / communities within the school and the extent to which this negative impact might constitute a breach of their rights or constitute discrimination under the Equality Act.

The school therefore needs to develop a policy, using a thorough equality and human rights impact assessment process, to take account of all these different and complex factors.

To do this effectively they would need to carry out extensive consultation about their policy and they would need to make sure that they create a process whereby everyone feels safe to give their view. They might wish to consult with pupils in the school, the staff and management of the school, the local community including any parents’ organisations and representatives of the local faith and belief organisations and other equalities groups.

It is also important to note that a policy which is perceived to be either “preferential” or unfair by or to any groups could have a negative impact on good relations both within and outside the school. This highlights the importance of a robust consultation process so that all those affected by the policy understand how the decision was arrived at.

One important point which may arise in discussion of this case study is the extent to which the answer is to be found by determining whether or not the dress code is an essential requirement of the religion/belief. The courts have said, even after hearing religious experts on both sides, that it is not the job of the courts or judges to make that decision, and that the key focus is on whether or not the belief in the requirement to manifest religion in that particular way is genuinely held.