On 27 October 2022, the Equality and Human Rights Commission (EHRC) issued its new guidance on preventing hair discrimination in schools.
How can hair be a source of discrimination?
Under the Equality Act 2010, indirect discrimination is concerned with acts, decisions or policies which, while not intended to treat anyone less favourably, nonetheless have the practical effect of disadvantaging particular groups of people with protected characteristics.
Protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
As such, hairstyles which are worn because of cultural, family or social customs can be considered part of an individual’s ethnic origin and therefore fall under the protected characteristic of race.
The ECHR has outlined its position that policies which place an arbitrary ban on hairstyles adopted by specific racial or religious groups, without the possibility of any exceptions on racial or religious grounds, are likely to constitute unlawful indirect discrimination relating to a person’s race, religion or belief.
The guidance sets out that this would include 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.
How much of an issue is hair discrimination?
Often the way in which schools’ rules relate to hair or hairstyles (either through school uniform, behaviour policies or stand-alone hair policies) means that they inherently regulate Afro hair or hairstyles by their design or implementation. There have been notable cases on this issue in recent years, including that of Ruby Williams and Chikayzea Flanders.
Ruby was a secondary pupil at The Urswick School in East London who, from age 15, was repeatedly sent home from school because teachers found her natural afro hair to be ‘unreasonable’ in size and length. Eventually Ruby and her family received £8,500 in an out of court settlement however the school continues to deny liability despite Ruby’s formative school years being characterised by unnecessary disruption and stress as a result of the hair policy.
In Chikayzea’s case, staff at Fulham boys school claimed that his dreadlocked hair (which he wore tied up) did not comply with the school’s uniform and appearance policy, despite it being part of his Rastafarian beliefs. Chikayzea’s mother argued that the dreadlocks were a fundamental tenet of Chikayzea’s Rastafarian beliefs and therefore he should be exempt from the policy. The school disagreed and Chikayzea was taught in isolation because of his hair. He eventually decided to leave and attend another academy nearby.
These cases highlight the impact that policies can have on students and, with the EHRC finding that discrimination related to hair (or hairstyles) disproportionately affects pupils with Afro-textured hair, it is not hard to see why the guidance has now been issued.
What action should schools take and what are the risks of inaction?
While organisations will undoubtedly not intend to discriminate against their pupils (or staff) consideration should be given to the impact of their policies and how they are drafted.
Unless schools can be objectively justify their policies as a proportionate means of achieving a legitimate aim, those which disadvantage individuals with a protected characteristic (such as race, religion or belief) will amount to indirect discrimination and leave schools open to potential claims.
As a first step, organisations should review their policies and practices to ensure they comply with the Equality Act 2010. As we also know that discriminating against pupils because of their hair (and therefore their ethnic identities) can have a negative impact on children’s mental health and wellbeing, it is vital for schools to take action and invest in professional development and training for staff so as to avoid cases like Chikayzea and Ruby from happening again.
Where next for hair discrimination?
While the focus of the ECHR guidance is on hair policies in education, workplaces with strict rules on appearance and/or mandated uniforms should also consider how this might impact their staff in light of the ECHR guidance.
Some organisations have already taken action in this area with big name manufacturer Unilever signing up to the Halo Code, an anti-discrimination campaign working to protect employees who come to work with natural hair and hairstyles associated with their racial, ethnic, and cultural identities.
Of course, it is not mandatory for schools or workplaces to have rules on hair or hairstyles so, before putting any such policy in place, consideration should be given to the policy’s purpose, if it is achieving a legitimate aim or whether it is potentially discriminating against individuals with a protected characteristic.
If you would like to discuss whether your policies are appropriate or if you feel you could benefit from some refresher training in this area, please get in touch with a member of the Employment Team on 03330 430350.
