G (by his litigation Friend) v The Head Teacher & Governors of St Gregory's and Another

JurisdictionEngland & Wales
JudgeMr Justice Collins,MR JUSTICE COLLINS
Judgment Date17 June 2011
Neutral Citation[2011] EWHC 1452 (Admin)
Judgment citation (vLex)[2011] EWHC J0617-1
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/15368/2009,CO/15368/2009
Date17 June 2011

[2011] EWHC 1452 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Collins

Case No: CO/15368/2009

Between:
G (by his litigation Friend)
Claimant
and
The Head Teacher & Governors of St Gregory's
Catholic Science College
Defendants

Mr David Wolfe (instructed by Maxwell Gillott) for the Claimant

Mr Peter Oldham Q.C. (instructed by Bond Pearce) for the Defendants

Hearing dates: 10 & 11 May 2010

Mr Justice Collins
1

This claim, which was lodged on 16 December 2009, concerns the lawfulness of the uniform policy applied by the defendants which, because the claimant was unwilling to comply with one aspect of it, meant he was unable to take up his place at the school. He was then aged 11 and was due to commence his secondary education at the defendants' school.

2

The claimant is of African-Caribbean ethnicity. He has since birth not cut his hair and it is kept in cornrows. This is in accordance with his family tradition. Cornrows (sometimes called braids) are prohibited by the uniform policy of the school and so he was not permitted to attend school so long as he kept his cornrow style. In his claim, he contended that the prohibition on cornrows it was unlawful because discriminatory on sex and on race grounds. Further, he asserted that there had been a failure to give any advance notice of the ban on cornrows (since, it was said, the written uniform policy did not make it apparent that the ban existed). As a result of his mother's complaints, the ban on cornrows has now been made explicit. It was said that there should have been consultation before this change was made and there was accordingly a breach of his legitimate expectation that the policy which did not explicitly ban cornrows would be applied. There were further complaints that there had been a failure to follow guidance issued by the what was then the Department of Children Families and Schools (DCFS), now the Department of Education, and a failure by the defendants to discharge their equality duty (imposed by s.71 of the Race Relations Act 1976 and s.76A of the Sex Discrimination Act 1975 respectively and now contained in s.149 of the Equality Act 2010 which came into force on 5 April 2011).

3

The claimant is now at a different school. The defendants assisted him in obtaining a place and he is happy there. He is able to retain his cornrow style and says:—

"I love my school, everyone is different and the teachers only care that I am learning, they don't have a problem with the way I look."

He had moved to the other school before this claim was lodged and so one of the grounds for resisting permission put forward in the defendants' Acknowledgement of Service was that the claim served no purpose: it was academic. It was also said that his mother had failed to pursue a complaint to the governors but had preferred to litigate. In addition, it was said that the claim was out of time.

4

Kenneth Parker J granted permission for the claim to be pursued on 15 June 2010. While unusual, it is not impossible for a claim to be entertained even if it will bring no benefit to the claimant in that he or she will not obtain any concrete relief. So here, the claimant himself does not wish to be able to attend the defendants' school. However, it is said that there is an important issue to be decided, namely whether the no cornrow policy for boys is lawful if it is applied as it was to boys such as the claimant. Since Mr Oldham Q.C. had not in his skeleton argument sought to maintain that I should not consider the claim because it was academic I assumed that the defendants were concerned to know whether their policy or the manner in which it was put into effect was lawful. The claimant was, it was said, equally concerned to establish that there was unlawful discrimination in the maintenance of such a policy which would affect other schools and so have a damaging effect on others who were of the same ethnicity and held the same view as him.

5

The Equality and Human Rights Commission (ECHR) applied for and on 23 September 2010 was granted permission to intervene. It instructed a Professor John to produce a report upon which it intended to rely to put forward written and perhaps, if it wished to apply to do so, oral submissions. Professor John's report was thoroughly unsatisfactory and, once obtained, should not have been relied on by the ECHR. I need not go into detail since the ECHR has accepted that it could not rely on the report, has withdrawn from the claim and is to pay the defendants' reasonable costs incurred in dealing with Professor John's report. Suffice it to say that those advising the ECHR showed a decided lack of judgment in serving Professor John's report and producing written arguments based upon it.

6

In the circumstances, I was prepared to permit the claim to be argued. I made it clear at the outset that I was only concerned to decide whether the policy as applied by the defendants is unlawful because discriminatory. That meant that I should consider its lawfulness against the law as it now stood, namely under the Equality Act 2010. However, that Act, although not using precisely the same language as the Acts of 1975 and 1976, is no different in its effect since it (as did the previous Acts as amended) follows the European Directive of 2000. It followed that I was not concerned with the allegations of breach of legitimate expectation or the precise circumstances of how the school dealt with the claimant and his mother in September 2009. The claimant's beliefs and the reasons why he and his family were concerned to keep his cornrows are of course material. The defendants know from these proceedings why he is adamant that he should not be required to abandon his cornrows at school, but have continued to resist his claim. This, incidentally, shows that he would not have achieved anything by pursuing a formal complaint to the governors. They contend that their policy is not discriminatory either on race or sex grounds and, further, if there is indirect discrimination, it is justifiable. While therefore any failure to discharge the equality duty is not directly relevant to the present lawfulness of the policy, it is material if the defendants need to show that any indirect discrimination is justifiable.

7

I should make it clear that I am not deciding whether on what the defendants knew at the time their decision was or was not lawful. Even if I decide that the present policy if applied to boys such as the claimant (having regard to his reasons for not wanting to abandon cornrows) is unlawful, it does not follow that the defendants acted unlawfully at the relevant time because all will depend on what they knew or ought to have known of those reasons. There are some factual issues raised on what was said and what information was given which I have not resolved nor could I resolve them. It emerged in the course of the hearing that a claim for damages based on discrimination had been brought in the County Court. If I decide that the policy as applied is and was lawful clearly that claim will go nowhere. If I decide that the policy as applied is unlawful, it will be for the county court judge to decide whether at the time the defendants knew or ought to have known that the claimant's case was such as required the policy to be modified in his favour. That will be likely to depend on what the judge finds as a matter of fact was told to the defendants and what, if any, steps the defendants should have taken to enable them to understand the claimant's position.

8

I have referred to the policy in its application deliberately since Mr Wolfe rightly accepts that the defendants are entitled to adopt a uniform policy, including what haircuts are permissible, which is or may seem to be very restrictive or conservative. Thus he accepts that choice or a desire to adopt a particular fashion is no good reason to be permitted not to abide by the policy. The defendants for their part recognise (albeit nothing is said in the policy as to any such exception to it) that religious or medical reasons may justify an exception. Thus Rastafarians or Sikhs who do not cut their hair will be permitted not to conform. The question I have to decide is whether, on what is now said by the claimant, his mother and witnesses who have made statements on his behalf, he should have been allowed not to conform since to refuse to allow him to do so amounted to unlawful discrimination.

9

I shall deal first with race discrimination. The legislation in force in September 2009 was contained in the Race Relations Act 1976 as amended. Section 1 of the Act defines what amounts to racial discrimination. It is not contended that there was direct discrimination, which is dealt with in s.1 (1). Thus the relevant provisions are contained in s.1 (1A) (which was inserted into the Act with effect from 2003 to comply with the EU Directive). This reads, so far as material:—

"(1A). A person discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (1B), he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but –

(a) which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons,

(b) which puts or would put that other at that disadvantage, and

(c) which he cannot show to be a proportionate means of achieving a legitimate aim

(1B) The provisions...

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    • 31 July 2020
    ...of ‘equality before the law’. Here he relies on the case of G v The Head and Governor of St. Gregory's Catholic Science College [2011] EWHC 1452 (Admin) where the court found that the school rules preventing ‘G’ from wearing cornrows to school, was indirect discrimination on the basis of e......
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    ...no: UA-2021-000606-HS 34. The appellant also argues that SG v Headteacher and Governors of St. Gregory’s Catholic Science College [2011] EWHC 1452 (Admin); [2011] ELR 446 and R(Elias) v Secretary of State for Defence [2006] EWCA Civ 1293; [2006] 1 WLR 3213 provide a clear line of authority ......
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    ...appearance is not of itself discriminatory”); G v The Head Teacher and Governors of St Gregory’s Catholic Science College [2011] EWHC 1452 (Admin), at para 56 (“What is to be regarded as conventional may well vary as time goes by and will depend on the facts of a particular case”) and para ......
  • R Z v The Academy
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    • Queen's Bench Division (Administrative Court)
    • 4 February 2013
    ...... Headmistress in August and then by its governors in December essentially to uphold that uniform ... the claimant, who claims through her litigation friend and mother, that she should be able to ... case of SG (by his litigation friend) v The Head Teacher and Governors of St. Gregory's Catholic ......
1 firm's commentaries
  • HR Bytes - June 2011
    • United Kingdom
    • Mondaq United Kingdom
    • 8 August 2011
    ...their hair in cornrow was discriminatory (High Court) In G v Head Teacher and Governors of St Gregory's Catholic Science College [2011] EWHC 1452 (Admin) the High Court held that the school's uniform policy prohibiting boys from wearing their hair in cornrows was unlawful and resulted in in......

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