Dressing down

The judgement of the Appeal Court in the case of SB v Denbigh High School was widely reported in the newspapers but not altogether accurately. It is not true that it marks the end of the school uniform.

The ruling does not mean that pupils can wear what they like or what their male relatives think they should wear.

The member of a punk rock band who claims he can wear what he likes in school is in for a disappointment.

Conversely, however, the case was not won on a technicality and it does not just apply to Muslim pupils. It may be relevant equally, for example, to Rastafarian dreadlocks.

Human rights

The appeals case was decided on the basis of the religious freedom clause of the European Convention on Human Rights and the particular facts of the case.

It only applies where the pupil can maintain that the restriction breaches the right to practise religion freely and where the school cannot defend that restriction.

The two decisive issues were, first, that the school had not considered the individual's case. It had said: "This is our uniform, take it or leave it."

Second, the school had already granted a separate uniform to one kind of Muslim and yet was refusing a similar concession to another kind.

The Appeal Court rejected, perhaps surprisingly, the suggestion that they consider various employment cases heard by the European Court of Human Rights.

These have established that an employee does not have to take a job which has rules that restrict the right to practise religion. Therefore such rules do not infringe the employee's rights.

The Court said that attendance at school was not a matter of contractual choice but compulsory and that therefore these employment cases did not apply.

While it is true that attendance at school is not contractual, there is choice and though education is compulsory, attendance is not.

So with the greatest possible respect to the Appeal Court, this part of the judgement is a little strange; not least because SB did have a choice of schools which allowed the Islamic dress she favoured.

In fact she was attending one at the time of the trial.

Questions to ask

The judges have laid down a clear sequence of steps by which they will determine cases under the religious provisions of the Human Rights Act.

These are:

• Has a claimant established that she or he has a right under the human rights convention?

• Has that right been violated?

• Was the interference allowed by the convention?

• Did it have a legitimate aim under the convention?

• What considerations need to be weighed up when determining whether the interference was necessary in a democratic society for the purpose of achieving that aim?

• Taking all this into account, was the interference justified?

To be justified, interference must be shown to prevent conflict or the infringement of others' rights and also be proportionate to the problem.

Implications

One might think that, with this ruling, the Appeal Court intended to prevent any interference with Islamic dress by schools for good.

On the contrary, the court was at pains to say that: "Nothing in this judgement should be taken as meaning that it would be impossible for the school to justify its stance if it were to reconsider its uniform policy and...determine not to alter it in any significant respect."

In other words, if the school concluded that by banning 'very strict Muslim' dress it was preventing conflict between pupils and could give evidence that this was a minor interference, it could carry on with its policy.

A uniform policy is governors' policy and can only be altered by them. A head should not make a pragmatic gesture that alters the uniform policy without their sanction.

The court rejected the Speirs v Warrington principle that a child who is told to go home and come back when dressed properly has excluded herself.

The normal rules of exclusion apply and if they are not applied correctly there is a denial of education under the Human Rights Act.

A head is then liable in his or her capacity as a public authority. The consolation is that damages will be proportionate to the loss of education and so probably slight.

Independent schools should note that they are not public authorities and are therefore outside the immediate scope of the convention.

Even if they were found to be within it, the contractual basis of their relationship with parents and pupils would appear, on the grounds of this judgement, to allow them to make rules which restricted the expression of religious belief.

By Richard Bird, SHA's legal consultant