The Equality and Human Rights Commission (EHRC) has published new guidance on ensuring that schools are inclusive for pupils with different hair types and headgear.
Hair discrimination has become a headline issue in recent years, with a reconsideration of how seemingly neutral policies on hair may have an unfair or discriminatory impact on people with different characteristics. Indeed, in 2021 a group of MPs called on the EHRC to make afro-textured hair a protected characteristic alongside those enshrined in the Equality Act 2010.
While the EHRC's guidance does not discuss hair as a protected characteristic in its own right, it does explore the way in which hair or headgear relates to the characteristics already in the Act. Below, we outline the key elements of the new guidance, and how it applies in practice.
What is hair discrimination?
Hair discrimination is the prejudicial or otherwise unfair treatment of people on the basis of the style, colour, length, or absence of hair. Where a person's hair is related to a protected characteristic specified by the Equality Act, hair discrimination can carry significant legal consequences for both schools and employers.
Potentially discriminatory policies
If a school bans certain hairstyles, it risks putting children from some ethnic or religious backgrounds, particularly those of Afro-Caribbean heritage, at a disadvantage compared with those from other backgrounds. In a 2011 case, a student succeeded in raising a case of indirect discrimination after being told to return home from school for having a cornrow hairstyle in contravention of the school's uniform policy.
The same will be true where a school requires all students to refrain from wearing head coverings; while policies prohibiting the wearing of some head coverings in the classroom are commonplace, hats and other headgear can have racial, religious, or other significance.
Similarly, schools are advised to avoid having gendered policies in relation to hair and hairstyles. The guidance highlights policies which require boys to have a certain length of hair and girls another as one which will be discriminatory and likely incapable of being justified.
Where possible, the EHRC's guidance encourages schools to review their uniform rules with indirect discrimination in mind. It advises schools against creating sets of rules whereby different students are subject to different rules relating to hair; this will be especially relevant in relation to gendered hair rules. Similarly, it advises against banning individual hairstyles which may be linked to students' race or other potentially protected characteristics, in line with the principles set out by the High Court in relation to cornrows.
In circumstances where schools seek to ban head coverings, the EHRC advises schools to be flexible and consider whether there needs to be exceptions to the ban. For example, where pupils' religion or race means that they wish to wear headgear in class. In addition to racial and religious considerations, schools should be aware of the way in which students with disabilities may have different preferences relating to head coverings; the guidance suggests that it would be discriminatory to prevent a student with cancer from wearing a wig in class.
Wider uniform issues
Avoiding discriminatory policies in relation to students' hair is just one of a broader range of considerations relating to school uniform policies that school leaders must bear in mind when setting rules. For example, in 2021 a London school apologised to a student who was unable to attend school because her religious beliefs prevented her from wearing a skirt that conformed with the school's uniform policy. Cases such as this highlight the significant legal and reputational issues that can arise from attempting to enforce a uniform policy on a student who does not conform to it because of a protected characteristic.