Paul Jennings (pictured), an employment and discrimination lawyer with Bates Wells Braithwaite in London, writes:
England’s education secretary Michael Gove has said that he expects all schools to promote “fundamental British values” from September. In a House of Commons debate he was asked whether this was consistent with the burqa being worn in classrooms, and he replied: “It is vital that schools should be places where young girls find their voices, rather than feeling that they are being silenced.”
The government does not have an exemplary record of giving guidance on dress codes. Mr Gove’s latest pronouncement risks causing further confusion and controversy: what does it mean to promote “British values” in schools, and do dress codes have any role to play?
In the absence of clear direction, schools have to look to the recent judgments from the domestic and European courts. These indicate that schools must proceed with caution before restricting religious observance, in respect of clothing or otherwise.
Teachers and veils
In a 2007 case involving Kirklees Council, the employment appeal tribunal found that a school was within its rights to insist that teachers not wear a veil when teaching on the basis that (in the school’s view) it interfered with children receiving the best possible instruction. However, it was held that a school must not prohibit a particular form of religious dress if this has no bearing on how staff perform their duties. Otherwise, schools will leave themselves open to discrimination claims.
Students and uniform
In 2006, a Bedfordshire school’s refusal to allow a 14-year-old pupil to wear a jilbab (a long coat-like garment) instead of the shalwar kameeze (a loose shirt and trousers) was challenged under the Human Rights Act. The House of Lords held the school’s refusal lawful, noting that it had taken considerable steps to consult on uniform policy, and that the pupil could join another local school that permitted the jilbab.
In 2013, the European Court of Human Rights (ECHR) upheld Nadia Eweida’s claim that the UK government had failed to protect her right to manifest her religious beliefs at work, after her employer, British Airways, had refused to allow her to wear a cross. The court made a subtle but important departure from previous UK decisions and held that whether an individual had the option of changing school or job was not a crucial factor in deciding whether a dress-code restriction was proportionate.
Now, the ECHR has held that the controversial French ban on covering the face in public – widely understood as a ban on the burqa – does not breach human-rights law. The crucial finding was that promoting conditions which facilitate socialisation and “living together” (the justification offered by France) was a legitimate aim which justified the ban. It seems unlikely that a more limited ban, such as a ban on wearing the burqa in school, would be deemed a violation of human-rights law. However, as always, the reason for implementing such a measure would be key.
What does this mean for schools?
In practice, schools are best advised to continue to act tolerantly and proportionately. Where a decision to impose a restriction on religious dress is taken, a school should firstly consider what it is trying to achieve and secondly ensure that the restriction is proportionate. Where the aim is legitimate and the restriction goes no further than necessary to achieve it, a dress-code restriction will be lawful. Whether or not “promoting British values” would stand up in court as reason for a dress-code restriction remains to be seen.