Many years after the celebrated case of Mandla (Sewa Singh) & anor v Dowell Lee & ors, the law of discrimination has evolved and developed with our diverse society. The explosion of protected characteristics under the Equality Act 2010 means that the various concepts used to analyse indirect discrimination are being revisited in various contexts. G v Headteacher and Governors of St Gregory's Catholic Science College considered the uniform and hair policy of a strict and high-performing school in inner London faced with an 11-year- old Afro-Caribbean boy who was told that he could not come to school wearing his hair in cornrows. Susan Belgrave reports

Although this case arises in the context of a school uniform policy, it is clear that the issue of appearance and conformity crops up repeatedly in the context of employment as employers seek to promote a brand or create a company ethos through the appearance of their staff. This was strikingly seen in the case of Eweida v British Airways. Personal appearance and fitting in with an image that a company wishes to project has become a fault line in discrimination law, generally irrespective of the context in which the case arises, and the issue is particularly relevant to employment practitioners as they advise their clients.

Identifying indirect discrimination is proving increasingly problematic as the courts seek to grapple with group disadvantage and the level of proof required. Hitherto, many issues identified have affected a large swathe (if not all) of those sharing a particular protected characteristic; Sikh men who wear turbans, for instance, or women with childcare responsibilities. However, not all Christians wear crosses, nor do all Sikhs have difficulty touching or handling meat, and nor do all black men put their hair in cornrows. Indeed, many would take great exception to the very idea. A duty imposed on an employer or large institution to have regard to these more specialised interests needs to be carefully calibrated. Equally, an emerging issue is whether the level of proof varies according to the nature of the protected characteristic involved.

The school's uniform policy

The school has a written uniform policy, which includes 
the following:

`Haircuts - the governors place great emphasis on appearance and uniform. One aspect of an acceptable appearance is the haircut. This standard is difficult to maintain among the various fashions but we have clear rules - these refer particularly to boys.

'Hair should not be so long as to fall below the collar. No ''skinhead" or shorn hairstyles. Hair should be cut uniformly all over without creating a crop or layered effect. No razor cuts so as to create lines or designs across the hair or eyebrow. Nothing outlandish - in colouring and so on.'

Thus, there is no overt mention of boys not being able to wear braids but this was apparently mentioned explicitly during a meeting for parents. G's mother missed that part of the meeting. So it was that on his first day at his new school, G was sent home for wearing his hair in cornrows, although they did not fall below his collar. G had not had his hair cut since birth and it was a tradition in his family that male members of family wore their hair in the cornrow style. G refused to cut his hair and eventually enrolled at a different school with a more flexible policy. Girls at the school were allowed to wear their hair in cornrows.

G subsequently brought a judicial review of the school's policy, alleging that it breached the school's general equality duty and amounted to indirect sex and race discrimination. G has also launched a claim for damages in the county court alleging indirect sex and race discrimination. In the High Court Mr Justice Collins reviewed the case law before concluding that the school's policy, in so far as it related to hair cuts, amounted to unlawful race but not unlawful sex discrimination.

The law

This case explores the thorny problem of group disadvantage where not all those who share a protected characteristic are equally affected by the provision, criterion or practice under consideration. In Mandla, it was easy to say that all Sikh men are required to wear their hair long and would thus be affected by a ban on wearing turbans.

At the other end of the spectrum is Eweida v British Airways where the claimant's case foundered because her belief in the requirement to wear a cross visibly over her uniform was accepted as personal to her. In the EAT, Elias P, as he then 
was, noted:

`The whole purpose of indirect discrimination is to deal with the problem of group discrimination ... persons of the same religion or belief should suffer the particular disadvantage, distinct from those who do not hold that religion or belief, as a consequence of holding or practising that religion or belief.'

There is no consensus on how large or small a group must be in order to gain protection under the indirect discrimination legislation. Elias P noted:

`It is conceivable that a particular specialist religion, perhaps a subset of a major religion, may operate in a particular region or locality and employers in that area may have to cater for that belief even those employers elsewhere do not. But there must be evidence of group disadvantage.'

In the Court of Appeal, Lord Justice Sedley postulated a spectrum of views on how large a cohort it might be necessary to identify: the narrowest group would be other individuals affected by the provision, criterion or practice; on the widest view the court would need to consider evidence which showed that others in society shared the religion or belief; or on an intermediate view it would operate by assuming that the workforce included such others and would have to consider whether they would be affected by the relevant requirement.

The school's case

The school is a highly regarded and very successful school in the London Borough of Brent, which is recognised as one of the most ethnically diverse boroughs in the country. The vast majority of its pupils are not white; 30% of its 1,027 pupils are of Afro-Caribbean or African ethnicity. The school has received outstanding grades in recent Ofsted reports, particularly in areas of pupil safety and behaviour, pupils' spiritual, moral, social and cultural development and the effectiveness with which it promotes equality of opportunity and tackles discrimination.

It was accepted that one of the primary concerns of the school in developing and enforcing its strict uniform policy is the gang culture that afflicts the local area, which could potentially affect boys attending the school.

In particular, the headteacher noted that the school has a strong Catholic ethos and a major concern has been to keep gang culture out of the school and to avoid ethnic tensions and violence. It was thought that distinctive hair cuts could be badges of ethnic or gang identity in an aggressive or unwelcome sense and could foster disunity. He pointed out that the school ban on shaven heads was a conscious determination to avoid white boys adopting any form of `skinhead' styles with their negative and sometimes racist connotations.

It was important to recognise that the cornrow hairstyle was not associated in any way with gang culture or aggressive behaviour but simply that the school had adopted a zero tolerance approach to all male hairstyles and thought that, if an exception were made in this case, the entire school policy relating to hairstyles would unravel as other children sought exceptional treatment.

At the same time, the school made it clear that there were exceptions to the policy made on a religious ground for Sikhs and Rastafarians and on medical grounds.

The claimant's case

As well as evidence from the claimant, the judge also received witness statements from the claimant's mother and two expert witnesses: an educational psychologist who had experience of African, African-Caribbean and African American culture, as well as the chief executive of the Advisory Centre for Education.

It was noted that braids have been worn in West Africa, Ethiopia and Egypt where each tribal region has its own traditional style and unique design signalling status, kinship or age group. Historically, cornrows, braids and plaits were also worn by slaves and particularly by ex-slaves who had been required to shave their heads while in captivity and who subsequently grew their hair long when freed. Evidence was provided of some families where it is taboo for young boys to have their hair cut. This was not for religious reasons but to maintain a family tradition.

The chair of the board of governors of the school, a man of Black Caribbean ethnicity, supported the policy, stating that while he had worn his hair in cornrow style when growing up he did not personally regard it as part of his culture or a badge of his ethnicity. He did recognise, however, that other people might take a different view about hair styles.

The decision

Mr Justice Collins concluded there was evidence that there are those of African-Caribbean ethnicity who do for reasons based on their culture and ethnicity regard the cutting of their hair to be wrong. He added:

'It may be that those who regard it as an obligation rather than a preference are in a minority, but on the material before me I am satisfied that there is a group who could be particularly disadvantaged by a refusal to permit them to wear their hair in cornrows.'

The claimant relied in particular on Watkins-Singh where a schoolgirl of Sikh origin was forbidden from wearing a kara (a small dagger) to school. It was noted in that case that there could be a particular disadvantage or detriment if a pupil is forbidden from wearing an item when that person genuinely believes that the wearing of the item is a matter of exceptional importance to his or her religious belief. Mr Justice Collins concluded that requiring the matter to be of `exceptional importance' conveyed the need for too high a standard. It was argued on behalf of the school that English law does not recognise that voluntarily adopted socio-cultural practices associated with a particular race can amount to race discrimination.

The judge returned to the guidance given in Mandla in relation to the characteristic of a distinct community. Lord Fraser identified certain essential characteristics: a long shared history, of which the group is conscious as distinguishing it from other groups and the meaning of which it keeps alive; and a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. Accordingly, he concluded that relevant characteristics included a common geographical origin and being a minority within a larger community. Thus family and social customs can be a part of ethnicity within the meaning of the Act.

The claimant has thus succeeded in establishing indirect race discrimination as the ban on cornrows would affect boys of African-Caribbean origin more than other groups. The judge rejected the school's defence of justification, pointing out that it had not complied with its equality duty and, if it had done so, it would have had regard to the government guidance for schools, which warns schools specifically about the possibility that a prohibition on cornrows worn by boys could be discriminatory.

He accepted there had been no other complaints from other parents or boys but pointed out that there is no way of knowing if those complying shared the same belief as the claimant but had complied with the policy rather than leave the school, or whether they had been deterred from applying to this school altogether as no other school in the area adopted a similar policy. Nor did he accept the argument that making another exception would cause the school's general policy to unravel; all exceptions would have to be based on cogent evidence of genuine family or cultural tradition.

The claim for sex discrimination was easily dismissed as the judge applied the case of Smith v Safeway that a dress code will not be discriminatory where it is applied with a conventional standard of appearance. The rigid appearance policy applied by the school favoured convention. While it is not unusual for boys nowadays to wear long hair, it is still not yet conventional for them to do so.

The area of indirect discrimination is being used increasingly in the courts and tribunals by claimants who object to their treatment at the hands of their employers or school. The development of the law in this area may be different when considering different protected characteristics or indeed different types of provisions, criteria and practices. To establish group disadvantage the claimant will need to consider how widespread the particular trait, practice or belief he is relying on is among others sharing the same protected characteristic.

The test may be more rigid for religious beliefs than for racial origin but it may also depend on how well known that trait actually is. This issue cropped up in the recent case of Chatwal v London Borough of Wandsworth, which has now been remitted to the employment tribunal for reconsideration of the evidence on group disadvantage. As was noted in the Eweida judgment in the Court of Appeal, a wide interpretation of 'group' runs the risk `of placing an impossible burden on employers to anticipate and provide for what may be parochial or even factitious beliefs in society at large'.

We seem to be some way off from a universal test which will allow policy-makers safely to pick their way around the minefield of religious, ethnic and other cultural differences that are shared by some but not all members of a particular community or group.

Susan Belgrave, 9 Gough Square

Cases referred to:

G v Headteacher and Governors of St Gregory's Catholic Science College [2011] EWHC 1452

Mandla (Sewa Singh) & anor v Dowell Lee & ors [1983] 2 AC 548

Eweida v British Airways [2010] EWCA Civ 80

Watkins-Singh, R (on the application of) v Aberdare Girls' High School & anor [2008] EWHC 1865 (Admin)

Smith v Safeway [1996] ICR 868

Chatwal v London Borough of Wandsworth UKEAT/048/10/JOJ (unreported)