Watkins-Singh, R (on the application of) v Aberdare Girls' High School & Anor

The issue raised on this application is whether on the particular facts of this case a particular school was entitled as a matter of public law to refuse to allow a Sikh girl to wear at School the Kara, which is a plain steel bangle which has a width of about 50 millimetres which is about one-fifth of an inch and which has great significance for Sikhs. This judgment is fact-sensitive and it does not concern or resolve the issue of whether the wearing of the Kara should be permitted in the schools of this country. Indeed, that is not a question that a court could or should be asked to resolve. Nothing that appears in this judgment seeks to resolve or to throw any light on this problem or the circumstances in which a Kara should be permitted to be worn in schools or any other arena in this country. Indeed it follows that nothing in this judgment is intended to be any comment on the traditions or the requirements of the Sikh or indeed any other religion and community.

In recent years, a number of school girls have sought unsuccessfully to challenge rules made by their schools which prevented them from wearing items which they considered necessary as part of their religious faith. Decisions of governors have been upheld which prevented pupils in certain schools wearing the Jihab which is a long coat-like garment (R (on the application of Begun) v Head Teacher and Governors of Denbigh High School [2007] 1 AC 100- “Begum”), the wearing of the Niqab veil (R (on the application of X v Head Teacher and Governors of Y School [2008] 2 All E.R. 249- “X v Y ”) and a Silver Ring Thing purity ring (R (on the application of Playfoot) v Governing Body of Millais School [2007] ELR 484- “Playfoot”).

Each of those applications has been founded largely, if not solely, on the provisions of the Human Rights Act 1998 but in this case the claim is based mainly on the totally different provisions of the Race Relations Act 1976 (“RRA”) as amended and the Equality Act 2006 (“EA”), which are provisions on which the claimants in the previous three cases were unable to rely but on which the claimant can and does rely.

This present application concerns the wearing of a Kara, which is a small plain steel bangle worn by Sikhs as a visible sign of their identity and faith. It is 5 millimetres wide and is therefore much narrower than a watch strap and many ordinary bangles. As I observed in court, it cannot be seen when the claimant is wearing a long-sleeved sweater.

The handing-down of the judgment has been delayed as I wanted to receive (and did receive) submissions from Miss Helen Mountfield counsel for the claimant and from Mr Jonathan Auburn counsel for the defendant on the recent detailed decision of Munby J in R (E) v Governing Body of JFS etc [2008] EWHC 1535 (Admin), which was handed down after the hearing in the present case ended. In addition, there were many post-hearing developments about the race equality policy of the school.

In the present case, Sarika Angel Watkins-Singh (“the claimant”), who is acting though her mother and litigation friend, is a 14 year-old Sikh school girl of Punjabi-Welsh heritage, who challenges a decision made on 26 October 2007 and which is continuing by her school Aberdare Girls’ High School (“the school”) and which has prevented her from wearing a Kara at her school. The claimant contends that these decisions of the Governing Body of the school (“the defendant”) were based on errors of law.

The school is a maintained girls’ non-denominational school in Wales. The Interested Party is the local authority which maintains the school but it has not played any part in these proceedings.

The claimant, who was born on 20 September 1983, entered the school in September 2005. Her father was Welsh but he died when she was a year old and when she was five years old, her mother married her step-father. He is an observant Sikh and the person who the claimant regards as her father. The claimant, who was given a choice as to which religion, if any, she wishes to follow, has selected the Sikh religion, which has become particularly important to her since her visit to India in March 2005.

The claimant’s school reports have been generally good and she enjoyed being at her school until towards the end of 2006 when she became a victim to various incidents of racial bullying, which she believed that the Head Teacher and the governors did not treat as a serious issue. As at May 2007, the claimant was a prefect and on 4 May 2007, the Head Teacher of the school had written to the claimant’s mother congratulating her on the claimant’s academic performance.

In April 2007, a teacher at the school observed the claimant wearing a bangle, which was her Kara. The teacher asked the claimant to remove it because it contravened the school’s uniform policy; which permitted only one pair of plain ear studs and a wrist watch to be worn by pupils. It is not disputed that from April 2007 when the school first sought to prevent the claimant from attending school wearing the Kara, she was and remains an observant, although a non-initiated, Sikh.

When the claimant refused to remove, it she sought an exemption from the policy because she stated that wearing her Kara was a matter which was central to her ethnic identity and religious observance as a Sikh. Miss Rosser, who was the Head Teacher at the school, told the claimant’s mother in a letter dated 2 May 2007 that “I have no problem with [the claimant] wearing her bracelet if governors agree”. She added that if the school were to allow the claimant to wear the Kara until the matter was resolved by the defendant, this would constitute discrimination against many other pupils who were not allowed to wear a cross because of the school’s jewellery policy, which was contained in the School’s Code of Conduct which provides that:

“Jewellery often poses a health and safety hazard to school activities. Pupils are allowed to wear a wrist watch and one pair of plain metal studs in the ear. No other jewellery is permitted. All jewellery must be removed for PE and swimming. Body piercing is not permitted. Adhesive jewellery to teeth or any part of the body is not allowed. Pupils will have excess or unacceptable jewellery confiscated”.

The claimant’s mother provided information about the Kara to the school but the meeting of the defendant was delayed pending receipt by the defendant of some unspecified national guidance.

A meeting of the defendant took place on 13 June 2007 at which it was decided to postpone again the decision as it was thought necessary to obtain advice from the local education authority (“LEA”). In the meantime, the claimant’s mother was asked not to allow the claimant to wear the Kara at school but instead she, that is the claimant, should carry it in her bag. The claimant’s mother said that she would let the claimant decide whether she wished to do so but the claimant did not return to school until 12 July 2007 after the intervention of the LEA’s welfare officer.

Upon her return to school, the claimant was interviewed by Miss Rosser and she was told that she would be permitted to attend the school wearing her Kara but only on the condition that she would be taught in isolation and that she would be kept socially segregated from other pupils. Miss Rosser explained this in a letter to the claimant’s parents of 12 July 2007. The segregation was strictly enforced and she was even accompanied to the toilet by a member of staff, who waited outside.

The defendant refused the request for an exemption and that the claimant would not be allowed to wear the Kara at school. The reasons given for the refusal in the decision letter on 20 July 2007, which arrived at the claimant’s home shortly after the end of the Summer term, were that:

“1.

The panel has not been convinced that, as part of her religion, it is a requirement that Sarika wears the Kara (bangle) on her wrist. It is suggested that, as an alternative, it is possible that it could be worn/carried elsewhere on her person.

2.

If it was to be allowed as an exception to the school rules, it is felt that there is a possibility that Sarika may be singled out as being different from her peers and that such actions may result in bullying or similar repercussions.

3.

The wearing of the Kara would give rise to health and safety issues. This would require a risk assessment being conducted prior to a variety of lessons being undertaken, this assessment may require the removal of the item which again would single the pupil out”.

It is not disputed that those were the defendant’s genuine three reasons for refusing the request for an exception. I should add that the claimant has said that she is quite prepared to compromise and remove or cover the Kara with a wrist sweat band during any lessons such as Physical Education where health and safety might be an issue. The claimant’s parents appealed against that decision. The claimant meanwhile returned to school on 5 September 2007 but she was unable to wear the Kara because her wrist was swollen. However, when the claimant wore it on 6 September 2007, she was immediately placed in seclusion and I will describe the effect of the seclusion on her in paragraphs 126 to 134 below.

The claimant’s request for an exemption was finally refused on appeal by the Appeals Committee of the defendant, which met in the absence of the claimant’s parents on 26 October 2007 after that committee had refused to postpone the meeting so that a representative of the Valley Race Equality Council could attend. The reasoning of the Appeals Committee of the defendant was merely that “article 9 of the ECHR does not require that one should be allowed to manifest one’s religion at any time and place of one’s choosing”. Surprisingly no reference was made to the provisions of the RRA or the EA, which are the basis of the present application. As I will explain in paragraph 119 below, it appears that the defendant did not consider the racial and religious aspect of their decision.

When the claimant returned to the school after the half term break on 5 November 2007 wearing the Kara, she was the subject of a series of fixed-term exclusions first on 5 November 2007 for one day and second on 6 November 2007 for 5 days. The claimant was not formally told of these exemptions or her right of appeal but her mother indicated by a letter dated 8 November 2007 that she wished to exercise her rights to make representations but on 13 November 2007 the claimant was told that she was being excluded for a fixed term by the Head Teacher of the school.

After 5 days of exclusion in any academic term, a pupil is formally entitled to appeal. On 15 November 2007, which was a day after the claimant’s sixth day of consecutive fixed-term exclusions had ended, she was told by Miss Rosser, Head Teacher in a letter that she would not be permitted to attend the school wearing the Kara but that this was not an exclusion because the claimant could attend school if she was dressed compatibly with the school’s uniform policy. When asked, Miss Rosser explained that she had not decided for how long this exclusion would last. It will be necessary to consider in paragraphs 141 to 153 below whether this was an exclusion and whether the defendant acted lawfully.

The claimant continued to feel unable to remove the Kara because of her identity as a Sikh and the present proceedings were commenced on 19 December 2007. The claimant’s solicitors unsuccessfully sought interim injunctive relief requiring the school to admit her wearing the Kara pending the outcome of these proceedings.

On 22 January 2008, the defendant’s Disciplinary Committee held a meeting to consider the claimant’s fixed term exclusions on 5 and 6 November 2007. On the following day, the defendant rejected the claimant’s appeal. It is also common ground that the reasons that the defendant governing body decided to uphold Miss Rosser’s decisions to exclude the claimant were that they considered her actions to be “open, deliberate and persistent defiance of the school’s authority”. I will return in paragraph 120 below to consider whether the defendant acted in accordance with its duties under section 71 of the RRA when it reached that conclusion.

The position is that since 21 February 2008 and pending the outcome of the present proceedings, the claimant is being educated at a different school namely Mountain Ash School which permits her to wear a Kara. Her case is that this has had a disruptive effect on her education and that she wishes to return to be educated at the school provided that she can wear the Kara.

There are a number of issues which have to be resolved in this case. It is common ground between the parties that a large number of factual issues need not be resolved but one which I have to deal with is the significance of the Kara to Sikhs. Professor Eleanor Nesbitt, Professor in Religions and Education at the Institute of Education in The University of Warwick, has written extensively about Sikhism and has made an informative witness statement.

In her witness statement she explained that: Guru Gobind Singh (the tenth Guru) is believed to have instructed his first initiates to adopt the “5 K’s” in 1699. The 5 Ks are the outward signs required of a Sikh and these are Kesh (uncut hair), Kangha (comb), Kirpan (sword), Kachh (cotton breeches) and Kara (steel or iron bangle).

The 5 Ks are important as they are intended to distinguish Sikhs from both their Muslim and Hindu contemporaries. In their origin they are closely associated with armed combat and the Sikhs’ history of struggle. When Sikhs learn about these martyrs of Sikh identity, they are told about the readiness of some Sikhs to lose their lives rather than to sacrifice their kesh, and this courage-to the point of martyrdom – is emphasised. Thus, the five Ks are regarded as demonstrating both loyalty to the Gurus’ teaching and the bravery to be counted at times when even their lives are endangered by this visibility.

The Kara is in origin likely to have been a defence for the sword arm. Sikhs explain its symbolism as a circle that reminds them of God’s infinity and speak of their being linked (“handcuffed”) by it to God. For many it is a reminder to behave in accordance with religious teaching. Hiding the five Ks is a matter of deep sensitivity. It is important that the Ks be visible, but even more important (even if circumstances necessitate that the Kara be temporarily hidden from view) that the Sikh concerned continues to wear it on his/her right arm/wrist.

In practice, it is the initiated or amritdhari Sikhs, who observe all 5 Ks and there are of course different levels of devoutness and observance amongst Sikhs. Only a small minority of Sikhs undergo the initiation ceremony or ever intend to. In Professor Nesbitt’s extensive experience of working with and studying Sikhs, she has concluded that of the 5 Ks, the Kara is the symbol most commonly worn by Sikhs as an external identification of Sikhism.

There has been evidence adduced by the defendant from Mr Jagwinder Singh which purports to be expert evidence on the significance to Sikhs of the Kara. His evidence, which purports to be expert evidence, deals with such matters of his experience of teenagers and how they regard religion as well as the significance of the Kara. Mr. Singh explains that the priority of teenagers, including Sikh teenagers, is that “friends and social groups are a clear first priority…with religion and heritage coming significantly down the pecking order of importance”. Miss Mountfield quite correctly points out that even though this purports to be an expert’s report, it fails to comply with the provisions of the CPR in important respects. The witness statement of Mr Singh fails to contain the very important statement of truth required from an expert (CPR 35Practice Direction paragraph 2.3 and 2.4) and details of his qualifications, instruction and material considered (ibid paragraph 2.2).

In those circumstances, I am bound to conclude that I cannot attach any weight to his evidence and Mr. Auburn did not ask me to do so in his oral submissions. Indeed in so far as Mr. Singh’s report purports to undermine or contradict Professor Nesbitt’s evidence, it has failed to show why her well-reasoned and thoughtful witness statement is in any way erroneous. So my conclusion is that although the claimant is not obliged by her religion to wear a Kara, it is clearly in her case extremely important indication of her faith and this is a view shared for good reason by very many other Sikhs.

There are a number of disputes between the claimant and the defendant on factual issues but the only one which is of importance relates to what the effect was on the claimant of being placed in segregation at the school which I will consider in paragraphs 124 to 137 below when considering whether her rights under article 8 of the ECHR have been infringed.

The claims made by the claimant are that:

Introduction

The concept of racial discrimination in the RRA was widened by section 1(1A) of the RRA, which was introduced in order to give effect to the European Directive, Council Directive 2000/43/EC of 29 June 2000 (“the 2000 Directive”), which implemented the principle of equal treatment between persons irrespective of racial or ethnic origin. In essence the Directive stated that there should be no direct or indirect discrimination based on racial or ethnic origin. It is noteworthy that Article 6 of the Directive provided that the 2000 Directive should not constitute grounds for reduction in the level of protection against discrimination.

The Preamble to the 2000 Directive refers to the International Covenant on the Elimination of All Forms of Racial Discrimination. Article 1(1) of that Covenant makes discrimination unlawful on grounds of race, colour, descent or national or ethnic origin which has the effect or purpose of nullifying or impairing the recognition, enjoyment or exercise of human rights or fundamental freedoms.

Section 1(1A) of the RRA provides that:

“(1A) A person also discriminates against another if, in any circumstances relevant for the purposes of any provision referred to in subsection (1B), he applies to that other as 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 that other at that disadvantage, and

(c)

which he cannot show to be a proportionate means of achieving a legitimate aim”.

The claimant contends that as a Sikh, she has been subjected to unlawful indirect discrimination on the grounds of race and religion. In Mandla v. Dowell Lee [1983] 2AC 548, the House of Lords held that Sikhs were a racial group defined by ethnic origins for the purpose of the RRA. It is an agreed fact that the claimant is a Sikh and as such she forms part of a “race” for the purposes of the RRA.

The claim is also brought under Part II of the EA, which prohibits discrimination on grounds of religion or belief in protected activities and it is not disputed that the claimant is a Sikh by religion as well as by race. Section 44(a) of the EA defines “religion” as meaning “any religion”. Section 45(3) EA defines indirect discrimination on grounds of religion or belief. It provides that:

“A person (“A”) discriminates against another (“B”) for the purposes of this Part if A applies to B a provision, criterion or practice-

(a)

which he applies or would apply equally to persons not of B’s religion or belief;

(b)

which puts persons of B’s religion or belief at a disadvantage compared to some or all others (where there is no material difference in the relevant circumstances).

(d)

which puts B at a disadvantage compared with some or all persons who are not of his religion or belief (where there is no material difference in the relevant circumstances) and

(e)

which A cannot reasonably justify by reference to matters other than B’s religion or belief.”

Section 49(1) of the EA provides that:

“it is unlawful for the responsible body of an educational establishment listed in the Table to discriminate against a person –

(a)

in the terms on which it offers to admit him as a pupil,

(b)

by refusing to accept an application to admit him as a pupil, or

(c)

where he is a pupil of the establishment –

(i)

in the way in which it affords him access to any benefit, facility or service,

(ii)

by refusing him access to a benefit, facility or service,

(iii)

by excluding him from the establishment, or

(iv)

by subjecting him to any other detriment”.

It is common ground that in considering the claimant’s case on grounds of indirect discrimination whether under the RRA or the EA, it is necessary to go through the following steps, which are:

What is the relevant “provision, criterion or practice”?

It is common ground that the relevant “provision, criterion and policy” in this case is the school’s uniform policy which is made up of the written policy, details of how it was applied and the school’s approach to the recognition of exceptions to its general policy. There is also no dispute that the relevant “provision, criterion or practice” was that only one pair of plain stud ear rings was allowed to be worn and that no jewellery beyond that was allowed unless the item was required to be worn as a compulsory requirement of the pupil’s religion or culture.

The ban on jewellery only applied to the wearing of items and so it did not restrict, for example, the displaying of the item by attaching it to a school bag or carrying it about one’s person. There was also nothing to prevent a pupil wearing any item of jewellery outside school and outside school hours although of course the claimant would spend a large part of her waking hours on weekdays at school in term time.

Which is the pool for the purpose of making a comparison of the relevant disadvantages?

The case for the defendant in its written skeleton argument was that there are two possibilities as to who could constitute the pool for the purpose of making a comparison of the relevant disadvantages. They are first that it comprised all pupils at the school who wish to wear jewellery and the second alternative is that consisted of all pupils in the school. The school suggest that the first group is the most appropriate by reason of the nature of the “provision, criteria or practice” to which I referred to in the preceding two paragraphs.

In the case of BMA v. Chaudhary, [2007] IRLR 800, the issue was whether there was indirect racial discrimination against the claimant who was a member of the BMA of Asian origin and who, in common with all other members, was entitled to advice and assistance except for the purpose of supporting claims of racial discrimination. The Court of Appeal determined that the findings, there was such a requirement or condition was perverse and it overturned the decision that the requirement or condition constituted indirect racial discrimination. The Court then went on to consider what the situation would have been if there had been such a requirement or condition. It rejected an argument that the pool was all members of the BMA, who might want the support and advice of BMA in proceedings, with Mummery LJ explaining (with my emphasis added) why a wider pool was the appropriate comparator that:

“202… The wider pool brings into the exercise of comparison people who have no interest in the particular advantage who will actually want the particular benefit in question”.

Applying that principle to the present case, those “who have no interest in the particular advantage or actually want the particular benefit in question” (which is to wear a Kara or other religious jewellery because of its great importance to them) are those whose cultural beliefs or religious practices are not compromised by the uniform code at the School. This approach is fortified by the conclusions of the House of Lords in Shamoon v Chief Constable of the RUC [2003] 2 All ER 26 in which Lord Nicholls of Birkenhead said in a case of sex discrimination that:

“4…The situation must be such that, gender apart, the situation of the man and the woman are in all respects the same”.

It is noteworthy that this was the approach adopted by the Constitutional Court of South Africa in MEC forKwazulu-Natal, School Liaison Officer and others v. Pillay (CCT 51/06 [2007] ZACC 21) in which it was held that a rule preventing a Tamil-Hindu girl from wearing a nose stud which was central to her cultural and religious identity was discriminatory on religious and cultural grounds. The court rejected an argument similar to the one put forward in this case that the refusal to offer the girl an exemption to the uniform code was justified to promote uniformity and acceptable conventional among students.

In that case, Langer CJ held that the comparator group which was treated better than the claimant was those pupils:

“44… whose sincere religious cultural beliefs or practices, or religious beliefs or practices are not compromised by the [Uniform] Code, as compared to those whose beliefs or practices are compromised”.

I agree with Miss Mountfield that a similar approach should be adopted in this case and that the comparators to the claimant should be those pupils whose religious beliefs or racial beliefs are not compromised by the uniform code on the issue of the Kara or any other similar item of jewellery, which is required to show the pupil’s intimate association with his or her religion or race. During his submissions, Mr. Auburn ultimately accepted correctly in my view that this was the proper approach.

Disparate Disadvantage or Detriment?

It will be recollected that section 1(1A) of the RRA requires the person claiming discrimination to show that he or she has been placed “at a particular disadvantage”. Section 45(3) of the EA requires a claimant to show that he or she has been placed “at a disadvantage compared with some or all persons who are not of his religion or belief (where there is no material difference in the relevant circumstances)”. Similarly, section 49(1) of the EA refers to a “detriment”.

In this case, it is not disputed that the inability to wear a Kara is the only detriment or the disadvantage which is only suffered by the claimant. Significantly, it is not suffered by the comparators to whom I referred in paragraph 46 above and they are those pupils whose religious beliefs or racial beliefs are not compromised by the uniform code on the issue of the Kara or any other similar item of jewellery which is required to show the pupil’s intimate association with the religion or the race concerned. The reason for that is those comparators do not suffer any disadvantage or detriment by the refusal of the defendant to grant an exemption from the uniform policy.

So the issue which I have to resolve can now be refined to being a consideration of whether the claimant is placed under a great “disadvantage” or has suffered a “detriment” because she was unable to wear the Kara which she regarded as a manifestation of her religion and race of exceptional importance.

The case for the defendant is that the claimant’s case does not reach the threshold of showing the appropriate degree of “disadvantage” because it was not a compulsory requirement of the claimant’s religion or race to wear the Kara. It is also said in the written skeleton argument that it is impossible for the court to conduct an assessment of the importance to the claimant of not being permitted to wear the symbol.

I am unable to accept the contention that there will only be “a particular disadvantage” or “detriment” where a member of the group is prevented from wearing something which he or she is required by his or her religion to wear. In my view, this threshold is too high for five reasons, which I will set out in no particular order of importance.

First, the words used in the statutory provisions do not suggest that they require such a high threshold as the defendant contends is the position. The New Shorter Oxford Dictionary defines the word “disadvantage” as “lack of advantage; an unfavourable condition or circumstance” and the word “detriment” is defined as “loss sustained by or damage done to a person or thing”. Neither of the these definitions of “a particular disadvantage” or “detriment” indicates that the adverse consequences in question have to reach a particularly high threshold and, in particular not as the defendant contends the position to be, that it has to be an inability to comply with a requirement of a religion or race.

The second reason why I do not consider that there will only be “a particular disadvantage” or “ detriment” where a member of the group is prevented from wearing something which he or she is required by his or her religion or race to wear is that such an interpretation would mean rewriting the legislative provisions so that after each of the words “a particular disadvantage” or “detriment”, it would be necessary to insert the words “in the form of not being able to comply with a requirement of his or her race/ religion” . This is not a permissible step for a court to take.

Third, the words “a particular disadvantage” and “detriment” have to be construed in the light of, and not be inconsistent with, the approach in the recent decision of the Grand Chamber of the European Court of Human Rights in DH & others v Czech Republic [2008] ELR in which it was stated that :

“181.. in Chapman,… the court also observed that there could be said to be an emerging international consensus amongst the contracting states of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle, not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community”.

Fourth, there is no statutory provision or in any authority from either Strasbourg or the domestic courts which I have seen which shows or suggests that these words (“a particular disadvantage” or “detriment”) require proof of a religious or a racial requirement. Fifth, there is no valid reason of principle put forward by Mr. Auburn which shows why the threshold for “a particular disadvantage” or “detriment” has to be as high as being a requirement of a religion or of race.

A. So it becomes necessary to decide if the claimant suffered “a particular disadvantage” or “detriment” when she was precluded from wearing her Kara at school and this entails consideration of how important the Kara is to the claimant. That means reaching a fact-sensitive decision in every case of considering whether the disadvantage identified by a claimant amounts to “a particular disadvantage” or “detriment”. So I do not need to, and will not set out, in this judgment definitive and a comprehensive test because the words “a particular disadvantage” or “detriment” are ordinary English words.

I stress that I am not saying that there will only ever be “a particular disadvantage” or “detriment” if these elements are proved as obviously there will be other cases in which these requirements are satisfied in different ways. There is therefore both a subjective element in (a) and an objective element in (b). My conclusion is that on the facts of this case, I believe that because elements (a) and (b) are satisfied, there will be a” a particular disadvantage” or “detriment” if the claimant is not allowed to wear the Kara.

That leads on to the question of how a court should decide if a claimant is genuinely contending that the wearing of an item is of exceptional importance to him or her for religious reasons. Assistance in resolving such a question is to be found in the authorities which throw light on the court’s role in identifying a religious belief calling for protection under Article 9 of the ECHR. It is noteworthy that in R (Williamson and others) v Secretary of State for Education [2005] 2AC 246 Lord Nicholls of Birkenhead (with whom the other members of the Appellate Committee agreed) explained in paragraph 22 that:

Applying those factors in this case, I have little doubt that the claimant genuinely and honestly attaches exceptional importance to wearing her Kara and thereby satisfies the subjective requirement in paragraph 56 (a) above. First, the claimant explains in her witness statement that it is not a piece of jewellery but that it is in her mind “one of the defining physical symbols of being a Sikh” as “itsignifies the eternity of life and the bond between a Sikh and his or her Guru”. Second, the claimant considers that it is worn on the wrist “as a constant reminder to do good with the hands” and is a religious symbol “which both demonstrates and reminds me of my faith”.

Third, she has said that wearing the Kara is “extremely important to me”. She explains that she has:

“a sense of duty to wear the Kara …as well as an expression of my race and culture”.

Nothing has been suggested to undermine the truthfulness of these comments which I accept as correct and as showing the exceptional importance that the claimant attaches to wearing the Kara. Furthermore I am fortified in reaching that conclusion by the fact that the claimant continued to wear the Kara even though when she was isolated from her friends at school, she must have fully appreciated the problems that had been caused for by wearing the Kara.

I interject to say that it has never been suggested that the claimant insisted on wearing the Kara merely because she was engaged in challenging the authorities at her school. Indeed, as I have explained, until the problems arose with the Kara, she was a school prefect and on May 4 2007, the school had written to the claimant’s parents congratulating them on the claimant’s achievements. Therefore, I can reject the possibility that she is insisting on wearing the Kara in order to be rebellious or just to defy authority. Indeed, I do not believe that the claimant would have taken the stand which she did if she had not come to the considered decision that wearing the Kara was of exceptional importance to her.

That leads on to the second requirement set out in paragraph 54 (b) above which is for there to be “a particular disadvantage” or “detriment”, there must be shown objectively that the wearing of a Kara can be shown objectively to be of exceptional importance to his or her religion or race, even if wearing it was not a requirement imposed on the claimant by her religion or race. This entails considering the views of an expert although I appreciate as Lord Nicholls said in the passage set out in paragraph 58 above, objective factors such as source material:

“at most ... may throw light on whether the professed belief is genuinely held”.

The evidence of Professor Nesbitt, which I accept stresses, as I have explained in paragraphs 23 ff above, the significance of wearing the Kara to Sikhs and that hiding the Kara is a matter of deep sensitivity as is the question is of removing it from the wrist. Professor Nesbitt concludes that:

“in my extensive experience of working with and studying Sikhs, of the 5 Ks the Kara is a symbol most commonly worn by Sikhs as an external identifier of Sikhism”.

It is noteworthy that Professor Nesbitt explains that the significance of the Kara to Sikh pupils in schools is recognised in the guidance issued by Redbridge, Birmingham and Swansea Council areas, which are areas which have large Sikh populations.

Thus I conclude that the claimant suffers a “particular disadvantage” or a “detriment” by not being allowed to wear her Kara at school; the reason for that the wearing of this item can be shown subjectively and objectively to be of exceptional importance to her religion and race as a Sikh even if not a requirement of the religion or race. Of course this is not a “particular disadvantage” or a “detriment” suffered by a comparator who I have described in paragraph 46 above.

I conclude that by not being allowed to wear the Kara the claimant is suffering “a particular disadvantage” or “detriment”.I am fortified in coming to this conclusion by the reasoning in the recent decision of the Grand Chamber of the European Court of Human Rights in DH & others v Czech Republic ( a part of which I referred to in paragraph 54 above) in which it is worth repeating that it was stated that :-

“181.. in Chapman, the court also observed that there could be said to be an emerging international consensus amongst the contracting states of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle, not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community”; and

“186... the court has noted in previous cases that applicants may have difficulties in proving discriminatory treatment. In order to guarantee those concerned the effective protection of their rights, less strict evidential rules should apply in cases of alleged indirect discrimination”.

Both those passages assist the claimant because they show that the court should not impose too high a threshold in seeking to establish prima facie discrimination as to do so would undermine the intension of the legislation.

I agree with Miss Mountfield that a policy which imposes, as the school’s policy on Kara’s does, “a painful choice” for a devout Sikh, like the claimant, between, on the one hand, complying with the customs of a minority ethnic group who values their identity as a member of it and, on the other hand, attending a school which she wishes to attend and which consistently with its rules impose “a particular disadvantage” or a “detriment” on that member of a minority ethnic group.

Of course, a person who simply wishes to disobey a rule for another reason unconnected with an identity protected by the RRA or the EA is not subject to the same kind of disadvantage. Thus I reject as incorrect the suggestion that if the claimant is allowed to wear the Kara, other pupils will be entitled to wear jewellery; that argument ignores the need for the “a particular disadvantage” or “detriment” to be of “exceptional importance” to the religion and race of the pupil concerned as I explained in paragraph 56 above. Indeed to equate the claimant’s desire to wear a Kara with a desire of another pupil to wear some other form of jewellery is not to compare like with like which is what the Strasbourg Court requires as was explained in Thlimmenos v Greece (2001) 31 E.H.R.R 50 [44]. So it follows therefore that the claimant has discharged the obligation of showing there was a “particular disadvantage” or a “detriment”.

Finally, I must deal with the approach of the defendantbecause in a witness statement, Mr. Peter Scott a Governor of the school explained that he chaired the meeting on 13 June 2007 and he explained that wearing the Kara was seen as “roughly similar” to displaying the Welsh flag because “that is something which engenders emotion, perhaps strong emotion but is not something which either her religion or culture requires her to wear”. I regard this as a seriously erroneous comparison because it totally ignores the critically important religious significance of wearing the Kara which is not shared by wearing the Welsh flag. I have already explained its objective significance in paragraphs 63 to 65 and its significance subjectively to the claimant in paragraphs 59 to 62 above.

Proportionality and Justification

The first matter which has to be considered is what precisely has to be justified. The defendant contends it is their uniform policy whilst the claimant submits that it is the failure to grant an exemption from that policy so as to permit the claimant to wear the Kara. I have no doubt that the claimant’s submission is correct because what is said to be discriminatory in the present case is not the uniform policy itself but the decision of the defendant not to grant an exemption in respect of the Kara. Indeed if this exemption had been granted, the claimant would have had no complaint about the uniform policy.

It is common ground between counsel that the operative test for justification was explained by Balcombe LJ in Hampson v Department of Education and Science [1989] ICR 179 at 191 F in a judgment (with which Nourse and Parker LJ agreed at pages 196H and 207D) when he said that:

“in my judgment “justifiable” requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition”.

It is settled law that the onus is on the person, who is alleged to have discriminated to justify the discriminatory treatment, and as Mummery LJ recently explained (with my emphasis added in a judgment with which Arden and Longmore LJJ agreed) that:

“the standard of justification in race discrimination is the more exacting EC test of proportionality... the objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. So it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group. It is not enough that [the party discriminating] could reasonably consider the means chosen as suitable for attaining that aim” (R (Elias) v Secretary of State for Defence [2006] 1WLR 3213 at 3249 [151]).

The reason for these requirements is not difficult to ascertain because both the domestic and the Strasbourg courts have drawn attention to the exceptionally serious effects for society as a whole and the psychological well-being of the individuals of race discrimination and segregation in the educational context. The reasons are, for example, set out by Arden LJ in Elias (supra) where she explains very persuasively why the adverse effect of unlawful discrimination are manifold at pages 3267-8 [269 – 270] and in DH (Supra). Lord Hoffmann explained in R (Carson) v Secretary of State for Work and Pensions [2006] 1AC 173 at 182- 183 [16] in respect of characteristics such as race, cast, noble birth (with my emphasis added) that:

“..the courts as guardians of the right of the individual to equal respect, will carefully examine the reasons offered for any discrimination.”

The burden of justification on the defendant means in the words of Munby J in the JFS case (supra) (but with references omitted) that: the defendant must show:

“164…that the measure in question corresponds to a “real need” and that the means adopted must be “appropriate” and “necessary” to achieving that objective. There must be a “real match” between the end and the means. The court must “weigh the justification against its discriminatory effect” with a view to determining whether the seriousness of the alleged need is outweighed by the seriousness of the disadvantage to those prejudiced by the measure always bearing in mind that the more serious the disparate impact the more cogent must be the objective justification”

Applying those principles to this case, what must be justified by the defendant is the discriminatory means to achieve the aim of having a uniform policy with its advantages. In order to discharge that burden, Mr Auburn seeks to derive assistance from decisions on justification which were successfully used by schools in the Begum, X v Y School and Playfoot cases to which I referred in paragraph 2 above in which the courts found in respect of claims brought under article 9 of the ECHR that the schools were entitled to prevent pupils wearing some piece of uniform. There is a very sharp distinction between those cases and the present case as many of the aspects of justification relied on in those cases are related to the extremely clearly visible and very ostentatious nature of the religious dress sought to be worn by the claimants in those cases. For example the niqab (which is the large veil which covers the pupil’s face except for her eyes) in the X v Y School case was clearly at other end of the spectrum from the Kara which is not only 50 millimetres wide but is only visible if the claimant is not wearing long sleeves. By the same token the jihab (which is a long coat –like garment) in the Begum case is infinitely more visible than the Kara.

So the niqab and the jihab are many times more visible to the observer than the very small and very unostentatious Kara. In consequence, many of the arguments which were accepted by the courts as justifying prohibiting the wearing at school of the niqab and the jihab do not apply to the Kara. Those arguments include:

There are three further matters which the defendant contends constitute justification of its decision not to allow the claimant to wear the Kara. They are first that the rigid uniform policy (which precludes a dispensation being given to the claimant to wear the Kara) prevents bullying; second that according to Miss Rosser that it would be “very difficult” to explain to girls at the school why an exception to the rule should be made in favour of the claimant; and third if the defendant had acceded to the claimant’s request to wear the Kara, this would constitute discrimination against other pupils at the school, who cannot wear jewellery.

I cannot understand why a decision to prevent the claimant from wearing the Kara would prevent bullying or would be difficult to explain. The only reason might be ignorance on the part of other pupils at the school first about the importance of a Kara to Sikhs and second in understanding why a decision by the claimant to wear it should be treated with respect. There are at least three reasons why these factors must be unreservedly and categorically refuted.

First, the obligation of bodies like the school to educate was explained clearly by the Strasbourg Court in its decision in Serif v Greece (2001) 31 EHRR 561 at Page 573 when it said that:

“53…Although the Court recognises that it is possible that tension is created in situations where a religious or any other community becomes divided, it considers that this is one of the unavoidable consequences of pluralism. The role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism but to ensure that competing groups tolerate each other”.

Second, as I will explain in paragraphs 93 ff below the defendant has a clear and important obligation under section 71 of the RRA when carrying out its functions (which must include deciding what uniform can be worn) to:

“have due regard to the need- (a) to eliminate unlawful racial discrimination; and (b) to promote equality of opportunity and good relations between persons of different racial groups”.

Third, the school has now in place a Race Equality Policy which states (with my emphasis added) that :

Therefore, there is a very important obligation imposed on the school to ensure that its pupils are first tolerant as to the religious rites and beliefs of other races and other religions and second to respect other people’s religious wishes. Without those principles being adopted in a school, it is difficult to see how a cohesive and tolerant multi-cultural society can be built in this country. In any event, in so far as the intention of the uniform policy is to eliminate bullying, there is no rational connection between this objective and eliminating signs of difference.

This shows clearly first that the defendant and the school should not have sought to remove the potential cause of tension by refusing to allow the claimant to wear the Kara but second that instead it should have taken steps to ensure that the other pupils understood the importance of wearing the Kara to the claimant and to other Sikhs so that they would then tolerate and accept the claimant when wearing the Kara.

There is no validity in Miss Rosser’s final point that to allow the claimant to wear the bangle meant that “all other pupils in the school were being discriminated against”. I am bound to say that I agree with Miss Mountfield that this contention shows a worrying lack of understanding of the need for equality of respect for those with different ethnic or religious beliefs and that this may mean taking reasonable steps to alter the “usual” rules so as to enable different situations to be dealt with differently. The stark fact is, as I explained in paragraph 78 (d) above, that the other pupils in the school, who are not allowed to wear jewellery are in a totally different position from the claimant as they (unlike the claimant) do not suffer a “particular disadvantage” or “detriment” for reasons of race or religion by not being allowed to wear jewellery.

For the purpose of completeness, I should repeat that the health and safety factors relied on by Miss Rosser as justifying her decision are not valid reasons for refusing to allow the claimant to wear the Kara as the claimant has said that she is quite prepared to compromise and to remove or cover the Kara with a wrist sweat band during any lessons such as Physical Education where health and safety might be an issue.

None of the arguments put forward by Mr Auburn either individually or cumulatively justify the refusal of the defendant to permit the claimant to wear a Kara at the school and thereby indirectly discriminate against her as a Sikh on grounds of race and religion. In reaching that conclusion I have not overlooked the fact that the school was willing to recognise exceptions to its uniform policy if the items concerned were mandatory requirements of a pupil’s religion or culture.

In my view, this is far too high a threshold because if a pupil considers for objectively reasonable grounds that the Kara was “one of the defining physical symbols of being a Sikh” and “which both demonstrates and reminds me of my faith”, the pupil should be allowed to wear it especially as in this case there is powerful objective evidence which shows that that view is strongly supported within the religion concerned. As I have explained in paragraphs 51to 55 above, no cogent reason was put forward to show the threshold for being permitted to wear a non-uniform item should be higher in that it would have to be a requirement of the religion.

So if I apply the test for determining if the defendant has discharged the burden of justifying its conduct as I set out in paragraphs 73 to 76 above, it seems clear that the attitude of the defendant in discriminating against the claimant on ground of her Sikh race and religion cannot be justified. This attitude is neither necessary nor appropriate to achieving any of the school’s objectives. In my view the absence of any acceptable justification for the decision of the defendant to refuse to allow the claimant to wear the Kara shows that there is no justification for the claimant’s policy or put in another way, the discriminatory effect far outweighs any justification for the discriminatory treatment of the claimant.

I have come to the clear conclusion that one of the reasons why the claimant has been the subject of unlawful discrimination on grounds of her Sikh religion and race has been the total failure of the defendant to comply with its important duties under section 71 of the RRA which I will explain in paragraphs 93 ff below. Indeed this failure would constitute additional grounds for holding that the decision of the defendant was not justified or proportionate.

Conclusion on indirect discrimination

For all those reasons I have come to the conclusion that the decision of the defendants not to grant a waiver to the claimant to permit her to wear the Kara constitutes indirect discrimination on grounds of race under the RRA and on grounds of religion under the EA. If the claimant is permitted to wear the Kara at school, this will be creating an extremely limited exception because at present it is not obvious that there will be other pupils of whatever religion or race who can invoke this exception which is dependent on two matters. The first is the belief of the pupil justified by objective evidence that the wearing of the article is a matter of exceptional importance as an expression of her race and culture. The second factor is the unobtrusive nature of the Kara being 50 mm wide and made of plain steel. The fears of the school that by permitting the claimant to return to school wearing her Kara, it will make great inroads into its uniform policy with many other girls wearing items to show their nationality, political or religious beliefs is in my view unjustified.

Introduction

The claimant contends that the defendant has failed in its duties to have an appropriate racial equality policy as required by section 71 of the RRA which states that has the heading “Specified authorities: general statutory duty”. It provides (with my emphasis added) that:

“(1)

Everybody or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need-

Schedule 1A RRA Part 1 paragraph 46 includes “governing bodies of educational establishments maintained by local authorities”. So the board of governors of the school, which is the defendant in this case, is covered. Article 3 of the Race Relations Act 1976 (Statutory Duties) Order 2001 (SI2001/3458) (“the 2001 Order”) made under section 71(2) of the RRA provides that:

“(1)

A body specified in Part I or II of Schedule 2 to this Order shall, before 31^st May 2002,

(a)

Prepare a written statement of its policy for promoting race equality (referred to in this article as its “race equality policy”) and

b)

Have in place arrangements for fulfilling, as soon as is reasonably practicable, its duties under paragraphs (3) or (4) as the case may be.

(2)

Such a body shall,

(a)

Maintain a copy of the statement, and

(b)

Fulfil those duties in accordance with such arrangements.

(3)

It shall be the duty of a body specified in Part 1 of Schedule 2 to this order to –

(a)

Assess the impact of its policies, including its race equality policy, on pupils, staff and parents of different racial groups, including, in particular, the impact on attainment levels of such pupils, and

(b)

Monitor, by reference to their impact on such pupils, staff and parents, the operation of such policies, including in particular their impact on the attainment levels of such pupils…”

Part I of Schedule 2 of the 2001 Order includes the governing body of an educational establishment maintained by a Local Education Authority and so the defendant as the governing body of the school was obliged to comply with the 2001 Order and with section 71 of the RRA.

To understand this issue, it is necessary now to stress the clear purpose of section 71 of the RRA, which is to require public bodies to whom that provision applies to give advance consideration to issues of race discrimination before making any policy decision that may be affected by them. As Arden LJ explained in Secretary of State for Defence v Elias [2006] EWCA Civ 1293 at paragraph 274;

“it is the clear purpose of section 71 to require public bodies to whom that provision applies to give advance consideration to issues of race discrimination before making any policy decision that may be affected by them. This is a salutary requirement, and this provision must be seen as an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation…”

The duties under section 71 must be fulfilled whenever a decision is taken which may have an impact on matters contained in it. Compliance should not be treated as a “rearguard action following a concluded decision”, but as an “essential preliminary to such decision, inattention to which is both unlawful and bad government”. (R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWCA Civ 1139 per Sedley LJ [3]).

The case for the claimant is that the defendant did not have a policy prior to the introduction of the new policy “having due regard to the need – (a) to eliminate unlawful racial discrimination; and (b) to promote equality of opportunity and good relations between persons of different racial groups” . In consequence, the defendant first did not have due regard to those needs when dealing with the claimant’s wish to wear the Kara at school and second did not assess the impact of its race equality policies on the wish of the claimant as a devout Sikh to wear the Kara at school.

The defendant contends that it has complied with its duties and it refers to a policy document from which I have quoted in paragraph 83 above and which I will refer to as “the new policy”. It is said that it has been in force since July 2007 and so it would cover many events with which this claim is concerned, which occurred after the end of the summer term of 2007. As I will explain, the picture that has emerged during the hearing is of a confused state of affairs in which the policies which the school said were in place in July 2007 were not approved by its governors until December 2007 and that previously, there had been no clear race equality policy in place.

There is a dispute between the claimant and the defendant as to when the new policy was implemented. The decision had to be implemented by the Board of Governors and they only did this at their meeting in December 2007 after the present claim was instituted. Nevertheless the evidence of the defendant is that in practice it was adopted with effect from July 2007.

Prior to the coming into force of the new policy, the position according to a witness statement made by Miss Keating was that in 2000/2001 the school wanted to put in place a race equality policy and so it contacted the Local Education Authority for further guidance on the subject. The school was informed that its neighbouring authority namely Merthyr Tydfil County Borough Council had a comprehensive policy already in existence and the school obtained a copy of it, which was the Merthyr Tydfil draft.

According to Mrs Keating, the defendant considered this policy which was the Merthyr Tydfil draft and adopted it in July 2002 and that it remained in force until the new policy was drafted but that it was reviewed from time to time. Surprisingly, there is no minute of any meeting at which this policy was discussed. The Merthyr Tydfil draft was entitled “Equal Opportunities Draft Race Equality policy for Merthyr Tydfil Schools”. In spite of its title, this document is not a policy document but merely sets out how a policy could be prepared. Indeed headings of it include sections titled:

“Preparing your race equality policy and keeping it up to date”,

“Steps to preparing your race equality policy” and

“Steps to maintaining your race equality policy over time”.

In my view, this approach shows an inability to implement a race equality policy and to foster good relations between pupils of different racial groups. The school should have regarded itself under a clear obligation to avoid bullying by explaining to all pupils why it was so important to the claimant to wear the Kara and why they should be tolerant of her. There is nothing in which I have seen in this case which proves to my satisfaction that the teaching staff or the defendant regard it as their duty to fulfil this important obligation. Indeed it does not appear to have been considered by the Head Teacher when she said in her first witness statement that the claimant’s education at the school wearing the Kara could not continue even on an interim basis pending the outcome of the present proceedings because it would be difficult to explain this accommodation to different groups to the pupils at the school.