There have been a number of recent cases in which individuals have challenged organisations’ dress codes on the ground that the code prevents them from wearing items that they consider to be important to their faith. These challenges have been brought by employees against their employers (including the high-profile cases of a British Airways worker suspended for wearing a Christian cross and a teacher who was suspended after she refused to obey an instruction not to wear a full-face veil in the classroom) and by students against their schools (where challenges have been brought variously in relation to the wearing of the hijab, the niqab veil and a purity ring).
Most recently, the High Court has considered a claim from Sarika Watkins-Singh, a schoolgirl excluded from school for breaking a no-jewellery rule. Ms Watkins-Singh refused to remove her kara, a wrist bangle, which is one of the “five K’s” of Sikhism and, while not obligatory, was central to her faith. She alleged that the school had indirectly discriminated against her on the grounds of her race and religion by refusing to allow her to wear the kara at school. Her complaint was upheld.
The approach taken by the Court
Where, as in this case, an organisation adopts a uniform policy or dress code that may disadvantage members of a particular religion, it will be at risk of indirect discrimination claims unless it can demonstrate that its policy is a proportionate means of achieving a legitimate aim. This means that if a uniform policy could bring someone into conflict with the requirements or conventions of their religion, the organisation needs to ask itself whether it has a compelling reason for insisting on compliance. Examples of grounds on which it may be appropriate to ban certain types of dress include security, health and safety or, in an employment context, because it prevents workers from doing their job effectively. However, the organisation must be able to demonstrate that the policy does achieve this purpose.
On the facts of this case, the school had to justify not the uniform policy itself but its failure to grant Ms Watkins-Singh an exemption from the policy. Factors that the Court took into account in refusing to accept the school’s arguments included the fact that in many schools the kara is permitted to be worn and that the case could be distinguished from the cases involving the hijab and the niqab as they are both “extremely clearly visible and very ostentatious” compared with the kara, which is only 50mm wide and not visible if the wearer has long sleeves. Health and safety arguments were also rejected. If the case had concerned the wearing of the crucifix on a chain, for example, then the court may have found the school’s decision justifiable on the grounds that wearing such an item is inherently dangerous in the school environment. By way of contrast, the health and safety argument in relation to the kara is very weak; and in this case Ms Watkins-Singh had agreed to remove the kara or cover it with a wristband during lessons, where health and safety might have been an issue.
What are the implications of the case?
The judge stressed that his judgment was dependent on “the very unusual facts of this case”. The judgment does not mean, as has been suggested in some press reports, that the kara must now be permitted in all schools. The judge also emphasised that if Ms Watkins-Singh were permitted to wear the kara at school, this would constitute “an extremely limited exception” to the school’s uniform policy. In addition, the judgment certainly does not suggest that uniform policies and dress codes are illegal, per se.
However, the case does serve as a useful reminder to any organisation that applies a dress code to, for example, staff, students or pupils, and which may disadvantage members of a particular religion, that it should always consider whether there is any scope for achieving the code’s objectives in a less restrictive way.
Diane Gilhooley is HR expert in the education team at Eversheds.