New EHRC Guidance - Preventing Hair Discrimination in Schools
New guidance from the Equality and Human Rights Commission (EHRC) on preventing hair discrimination in schools has been published.
The guidance is intended to support governing bodies, academy trusts, education authorities and all school leaders at all schools in England, Scotland and Wales to foster an inclusive environment in relation to hair and hairstyles.
The new EHRC guidance (the Guidance) highlights that hair discrimination disproportionally affects certain individuals with protected characteristics under the Equality Act 2010, most commonly those with afro-textured hair or hairstyles. Traditionally, some schools have been known to have a strict, and often non-inclusive rules, towards such individuals. In this article, we explain the background to the latest Guidance and highlight the practical steps that all schools can take to ensure that their policies relating to hair and appearance do not inadvertently discriminate against certain pupils.
Indirect Discrimination
Rules on hair and hairstyles can be indirectly discriminatory under the Equality Act 2010 if they are found to be apparently neutral policies or practice that put pupils sharing a protected characteristic at a disadvantage compared with pupils who do not share that characteristic. The protected characteristics applying to education providers under the Equality Act 2010 in respect of pupils are: disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
The Guidance explains that the protected characteristics that may be relevant when it comes to polices on hair and appearance are the protected characteristics of race, religion or belief and sex, and in some cases disability if it involves eg the wearing of a wig if a pupil is undergoing medical treatment for cancer. The Guidance also provides examples of unlawful indirect discrimination cases relating to hair, taken from real life cases, including:
- a policy banning boys from certain hairstyles, including cornrows, which was found to be indirectly discriminatory on the basis that a pupil wore cornrows for cultural and family reasons
- a ban on 'voluminous' hairstyles which was found to be indirectly discriminatory in favour of a student with natural Afro hairstyle
Such policies would not be found to be indirectly discriminatory if the school can show that the policy is justified as a proportionate means of achieving a legitimate aim, however it would be difficult to see what legitimate aim the school would have in banning pupils from having certain hairstyles. Such a policy is, for example, unlikely to have the legitimate aim of health and safety unless a thorough health and safety risk assessment could demonstrate this to be the case.
Schools will therefore welcome the good practice examples and information within the Guidance to help them to prevent discrimination based on hair. These include:
- reviewing and, if needed, amending school policies and practices to ensure that they are not discriminatory to individuals with certain protected characteristics
- reminding schools that they must have due regard to the Public Sector Equality Duty (PSED), to ensure that they foster good relations and eliminate unlawful discrimination and harassment related to hair
- providing training for all staff on hair discrimination and the PSED in order for staff to understand and support compliance with the PSED
- organising a range of activities, for example those that include Black role models and that celebrate Afro textured hair
The EHRC has also published a decision making tool to help schools prevent any potential discrimination related to hair or hairstyles when drafting or reviewing relevant school policies and a video and case study which schools may find useful to train staff on such issues.
How Can VWV Help?
VWV are national experts on advising academies and maintained schools on equality issues. We can support schools to draft or review its policies, such as school uniform and behaviour policies or stand-alone policies related to hair or hairstyles, to ensure that they comply with their duties under the Equality Act 2010 and the wider legislative and regulatory framework.
We also frequently provide training to schools on equality issues and can advise on and provide training for staff on this area, to ensure that all staff understand the school's relevant policies, its legal duties and how to recognise inappropriate behaviour in relation to pupils and their hair and hairstyles.