Watkins-Singh, R (on the application of) v Aberdare Girls' High School & Anor

Indirect discrimination may arise from refusing an exemption from a uniform policy, rather than from the policy in the abstract. The comparator group comprises pupils whose racial or religious identity is not compromised by the rule. Particular disadvantage or detriment does not require proof that the relevant religious practice is compulsory. On the facts, the threshold was met where the claimant genuinely and reasonably regarded the item as exceptionally important, and objective evidence established its exceptional importance to her religion or race. Justification requires a real need, appropriate and necessary means, and a proportionate balance against the seriousness of the disadvantage. A school’s statutory race-equality duty requires advance consideration of these matters. A school cannot avoid exclusion safeguards by conditioning attendance on compliance with an unlawful rule.

The claimant, a Sikh pupil at a maintained non-denominational school, challenged the refusal to allow her to wear a Kara, a small steel bangle of religious and racial significance. The school’s uniform policy prohibited jewellery other than ear studs and a wristwatch, subject to exceptions for compulsory religious or cultural items. The claimant relied principally on indirect discrimination under the Race Relations Act 1976 and the Equality Act 2006.

She also challenged the school’s compliance with its statutory race-equality duties, her segregation and disciplinary treatment under the European Convention on Human Rights, the procedure used for her fixed-term exclusions, and the failure to follow exclusion guidance. The central questions were whether the refusal caused a particular disadvantage or detriment, whether it was justified, and whether the later prohibition on attending without removing the Kara amounted to an exclusion.

1. The claim succeeded on indirect race and religious discrimination, breach of the statutory race-equality duty, procedural unfairness concerning exclusion, and failure to follow the applicable exclusion guidance. The Article 8 claim was dismissed.

2. The relevant provision, criterion or practice was the refusal to grant an exemption from the jewellery rule. The appropriate comparator pool comprised pupils whose racial or religious beliefs were not compromised by the rule. Mandla v Dowell Lee [1983] 2 AC 548, BMA v Chaudhary [2007] IRLR 800, Shamoon v Chief Constable of the RUC [2003] 2 All ER 26 and MEC for Kwazulu-Natal, School Liaison Officer and others v Pillay [2007] ZACC 21 supported that approach.

3. A particular disadvantage or detriment did not require the Kara to be a compulsory requirement of Sikhism. The claimant’s genuine belief, held on reasonable grounds, that wearing it was exceptionally important to her identity or faith, together with objective evidence of its exceptional religious or racial significance, satisfied the threshold. Applying R (Williamson and others) v Secretary of State for Education [2005] 2AC 246, the court assessed genuineness as fact and did not judge religious validity or orthodoxy.

4. The school bore the burden of objective justification. The measure had to correspond to a real need and be appropriate and necessary, with its benefits weighed against the seriousness of the disadvantage. The reasoning in Hampson v Department of Education and Science [1989] ICR 179, R (Elias) v Secretary of State for Defence [2006] 1WLR 3213 and R (E) v Governing Body of JFS etc [2008] EWHC 1535 (Admin) was applied. The school’s arguments concerning uniformity, bullying, wealth, community spirit, floodgates and safety did not justify refusing an exemption for this small and unobtrusive item. The court distinguished the more visible garments considered in Begum, X v Y School and Playfoot.

5. Under section 71 of the Race Relations Act 1976, the governing body had to give advance due regard to eliminating unlawful racial discrimination and promoting equality of opportunity and good relations. Its incomplete policy and failure to consider those duties and the Kara’s significance materially undermined its decision. The court also rejected the Article 8 claim because, on the factual basis required by R v Camden LBC, ex party Cran [1995] 94 LGR8, the claimant was treated as content during segregation and the necessary level of seriousness was not shown.

6. An exclusion required both a direction to stay away and disciplinary grounds under section 52(10) of the Education Act 2002. The school could not rely on Spiers v Warrington [1954] 1QB 61 because the rule underlying the refusal was unlawful. Telling the claimant that she could attend only without the Kara was therefore a disciplinary exclusion. The school breached regulation 4 of the applicable exclusion regulations by failing to notify the claimant and her parent of the exclusion, reasons and representation rights, and failed to have regard to the 2004 exclusion guidance. A further disciplinary hearing was required.

This was a first-instance judicial review. The judgment records that permission to appeal was refused, with a possible renewed application contemplated.