Preventing Hair Discrimination in Your School
The Equality and Human Rights Commission (EHRC) has recently provided non-statutory guidance designed to help school leaders ensure that their policies on pupil hair and hairstyles are not unlawfully discriminatory
Many schools choose to develop a separate policy for pupil hairstyles or to set out their expectations about them in a discrete section of their pupil behaviour policy. Here Martin Cain distils the key elements of the guidance for leaders to allow them to consider the extent to which their present policy or approach is fit for purpose and likely to ensure that their school does not fall foul of the Law.
Background
Recent evidence from legal case studies indicates discrimination related to hair or hairstyles disproportionately affects Black pupils and particularly those with Afro-textured hair or hairstyles.
Discriminating against pupils because of their hair may have a negative effect on pupils’ mental health and wellbeing. Schools also need to remember that they have a safeguarding obligation to protect pupils from race discrimination and bullying.
Schools have a duty to ensure that their rules on hair and hairstyles do not have the potential to result in unlawful indirect discrimination against pupils with certain protected characteristics, for example:
- Race;
- Religion or belief;
- Sex;
- Disability;
- Sexual orientation; and
- Gender reassignment.
Indirect discrimination can happen when a school applies an apparently neutral policy or practice that puts pupils sharing a protected characteristic at a disadvantage compared with those who don’t share that characteristic. Such policies are likely to be indirectly discriminatory unless the school can show the policy is objectively justified as a proportionate means of achieving a legitimate aim.
Self-questioning
Whether schools are looking to develop a new policy or amend an existing policy they should consider the following questions:
- What are the aims of rules on hair and hairstyles, what are they trying to achieve and does the school need rules on hair or hairstyles?;
- Are the rules reasonably necessary to achieve those aims or could they be achieved through other means?;
- Will the rules regarding hair or hairstyles affect some groups of pupils more than others: for example, because of their race, religion or belief, sex, disability, sexual orientation, or gender reassignment?;
- How might the rules affect pupils, for example taking into consideration their sense of identity, culture, mental health, wellbeing and confidence?;
- Are there health and safety implications? Protecting the health and safety of pupils is a genuine and important factor to consider, concerns should not be hypothetical but evidence-based and any request for exemption must be considered on its own merits;
- Does the policy meet pupils' needs? For example, schools can include the possibility for exemptions in the hair or hairstyle policy on the grounds of race, religion or belief, sex, disability, sexual orientation or gender reassignment;
- Do the school’s rules regarding hair or hairstyles have clear provisions for making reasonable adjustments for disabled pupils or those with SEND? A school may be required to make adjustments to its rules for disabled pupils who have certain requirements in relation to their hair or hairstyles due to their disability or SEND; and
- Has the school completed an equality impact assessment regarding its policy on hair or hairstyles?
Consultation, co-design and co-review
To ensure an informed, inclusive and transparent decision-making process when drafting or reviewing policies schools should consult with those who will be affected. Schools are encouraged to include pupils, parents, carers, and staff in their consultation process. Where schools have hair or hairstyle policies, it is good practice for schools to inform all parents, carers, staff and pupils of their rationale for having the policy. Schools should also consult with organisations that have expertise on this issue, for example, trade unions or local community groups. The responsibility to ensure policies are not discriminatory lies with the school and not contributors to the consultation process. The processes outlined above should also apply to any review of the implementation and impact of the policy.
Unlawful indirect discrimination
Hairstyles worn because of cultural, family and social customs can be part of a pupil’s ethnic origin and therefore fall under the protected characteristic of race. A school policy that bans certain hairstyles adopted by specific racial or religious groups, without the possibility of any exceptions on racial or religious grounds, is likely to constitute unlawful indirect race or religion or belief discrimination. This includes hairstyles such as (but not limited to): head coverings, including religious based head coverings and African heritage head wraps, braids, locks, twists, cornrows, plaits, skin fades and natural Afro hairstyles.
Examples of good practice to prevent unlawful indirect discrimination
Schools often apply a blanket rule of no headgear on the school premises. However, this could indirectly discriminate against pupils on a number of different grounds including, for example:
- Disability- for pupils undergoing cancer treatment who wear wigs, scarves or hats;
- Religion or belief - for Muslim pupils who cover their hair or Sikh pupils who wear a turban; and
- Race – for black pupils or those with a mixed ethnic background who wear African heritage head wraps.
Some schools have policies which allow for differences between how boys and girls wear their hair. For example, girls may be allowed to wear their hair long and tied up but boys have to keep theirs cut above the collar. This could constitute indirect sex discrimination because it is unlikely to be objectively justified as a ‘proportionate means of achieving a legitimate aim’.
The solutions to both of these scenarios are very straightforward; in the first one, the school should amend its policy to include exceptions on the grounds of disability, race religion or belief whilst in the second it should amend its policy so that there is no difference in hair rules for boys and girls.
Expressions to avoid
·It is good practice to avoid using expressions with a broad meaning, such as (but not limited to):
- 'Distracting’;
- 'Voluminous' or 'big’;
- ‘Reasonable’;
- ‘Inappropriate’;
- ‘Extreme’;
- ‘Exotic’;
- ‘Bizarre’; and
- ‘Severe’.
These terms may have negative connotations and do not provide sufficient clarity for pupils, staff, parents or carers to fully understand which hairstyles pupils can wear at school. They might create confusion so it is recommended to avoid them as it also is to avoid labelling hairstyles in a derogatory manner, such as using the term ‘aggressive’ or making references to gangs; this has occurred in legal case studies in the past.