G v St Gregory's Catholic Science College (Rev 1)

A school may adopt a strict and conservative appearance policy, including different rules for boys and girls, provided it complies with equality law. A prohibition on cornrows for boys can constitute indirect race discrimination where it places members of an African-Caribbean group, whose cultural or family practice requires uncut hair, at a particular disadvantage. The disadvantage need not be established as a matter of exceptional importance, but more than personal preference is required. The school must then show that the prohibition is a proportionate means of achieving a legitimate aim. Genuine cultural or religious requirements may justify exceptions without undermining a generally strict policy.

The claimant, an African-Caribbean boy, was refused admission to the defendants’ school because he wore cornrows in accordance with his family’s cultural practice. The written policy did not initially state the prohibition expressly, but the policy was later amended to prohibit braids for boys. The claimant had moved to another school, so the court considered the lawfulness of the policy as applied rather than the lawfulness of the defendants’ knowledge or conduct in September 2009.

The issues were whether the prohibition constituted indirect race or sex discrimination, whether any race discrimination was justified, and the relevance of the public-sector equality duty and departmental guidance.

1. Race discrimination. The relevant provision, criterion or practice was the prohibition on cornrows for boys below the sixth form, not the uniform policy viewed as an indivisible whole. If that aspect was discriminatory and unjustified, the policy was unlawful to that extent. The approach in Eweida v BA [2009] 1 ICR 303 required evidence of group disadvantage, not merely an individual preference. The evidence established a group of African-Caribbean persons who could be particularly disadvantaged because cultural and family practices might require males’ hair to remain uncut.
2. The claimant had suffered a particular disadvantage. Personal choice alone would be insufficient, but the requirement to show exceptional importance might set the threshold too high. Particular importance was required, and the claimant met that threshold by reason of his lifelong practice, family tradition and refusal to cut his hair even after being denied admission. The court applied the statutory concept of indirect discrimination.
3. The distinction between cultural or family practices and ethnicity was rejected. Following the approach in Mandla v Dowell Lee [1983] 2 AC 548, family and social customs may form part of ethnicity.
4. The school’s aims of maintaining discipline, safety, cohesion and protection from gang culture were legitimate. However, the prohibition was not justified. A carefully defined exception for a genuine cultural, religious or medical requirement would not prevent the school from excluding hairstyles adopted merely by choice. The absence of complaints was relevant but could not determine proportionality. The equality duty had not been fulfilled, although that failure did not itself establish that the policy was disproportionate. The guidance, including its specific reference to cornrows, was highly material.
5. Sex discrimination. The court followed the package approach in Smith v Safeway Plc [1996] ICR 868. Appearance rules need not apply identically to both sexes if, viewed overall, they enforce a common standard of smartness or conventionality. Cornrows being permitted for girls did not make the policy discriminatory against boys.
6. The claim therefore succeeded only to the extent that the policy as applied could produce indirect race discrimination. The court did not decide whether the defendants acted unlawfully in September 2009, which depended on what they knew or ought to have known. The separate damages claim was left for the County Court.