Examining potentially discriminatory exclusions
Chris Cook reviews the potential pitfalls of excluding pupils
The DfE’s current guide to “Exclusion from maintained schools, Academies and pupil referral units in England” instructs that: “The decision to exclude a pupil must be lawful, reasonable and fair. Schools have a statutory duty not to discriminate against pupils on the basis of protected characteristics, such as disability or race. Schools should give particular consideration to the fair treatment of pupils from groups who are vulnerable to exclusion.” While this seems a logical instruction in theory, what actually happens in practice?
The power to exclude
Only a headteacher can exclude a pupil and it can only be on disciplinary grounds. A pupil can be excluded for one or more fixed periods (up to a maximum of 45 school days in a single academic year), or permanently. Under the Equality Act 2010, schools must not discriminate against, harass or victimise pupils because of their sex, race, disability, religion or belief, sexual orientation or because of a pregnancy/maternity. If a child is disabled, a school has a duty to make reasonable adjustment to their general policies and practices.
A problem facing many schools is that exclusion rates for particular groups of pupils have been found to be consistently higher than average. These include students with SEN, pupils eligible for free school meals and pupils from certain ethnic groups. The groups with the highest rates of exclusion are those from black Caribbean communities, travellers of Irish heritage and Gypsy/Roma. Why is this the case?
Exclusions that could be discriminatory
A school’s policies could cause indirect discrimination against pupils with a particular protected characteristic. For example, some schools have a blanket exclusion policy of “three warnings and then exclusion”. This could be indirectly discriminatory against, for example, traveller pupils. Pupils from these communities often face high levels of bullying and may retaliate against bullying that is not properly investigated by a school in the first place. Owing to moving around from school to school, they may feel unsettled and may also find it hard to make new friends, contributing further to the problem. A way of solving this could be to investigate each bullying incident thoroughly on a case-by-case basis.
A behaviour policy may be indirectly discriminatory against a student with SEN. The policy may expect the same standard of behaviour from all pupils, whereas there should be a differentiated behaviour policy in place for those with autism and learning difficulties.
If there are trends of certain groups within a school that are persistently facing exclusion then the school should consider introducing a policy to support those particular students. There are a number of training courses available to teachers in order to support specific groups of pupils, for example for boys with SEN.
Another trend that is becoming more common is that pupils are sometimes excluded for things that should not warrant such a sanction. In a Children’s Commissioner report earlier this year, a key recommendation from the report was that it was “never appropriate” to exclude pupils for minor infringements. This includes breaching school uniform codes (such as wearing short skirts, trainers, hoodies or jewellery) or turning up with a shaven head or particular hairstyle. It was feared that this is likely to disadvantage particular religious or ethnic groups. Schools were recommended to either use detentions or to teach pupils in isolation as an alternative punishment.
Challenges against school policies
Recent cases show that schools must be vigilant to ensure that their standard policies do not indirectly discriminate against certain groups of pupils. It may be necessary for schools to consider exceptions to policies in certain circumstances, both for religious reasons but potentially also for social or cultural reasons.
In the recent case of G v Head Teacher and Governing Body of St Gregory’s Catholic Science College  EWHC 1452, G succeeded in his claim that a ban on boys wearing their hair in cornrows amounted to indirect discrimination on racial grounds. The hairstyle is traditionally worn by boys of African-Caribbean ethnicity, as for cultural and ethnic reasons they believe the cutting of their hair to be wrong and they need it to be kept in cornrows. The court was satisfied that a group existed who could be particularly disadvantaged by a refusal to permit them to wear their hair in this style.
Turning to religious matters, in R (Watkins-Singh) v Governing Body of Aberdare Girls’ High School  EWHC 1865 (Admin), a 14-year-old Sikh school girl who was refused permission to wear a Kara bangle succeeded in her claim for indirect discrimination contrary to section 1 of the Race Relations Act 1976 and indirect discrimination on the grounds of religion, contrary to section 49 of the Equality Act 2006. It is interesting to note that the wearing of the bangle did not need to be a requirement of the religion, it is enough that it is of exceptional importance to the faith of the wearer.
Further, the case of R (Begum) v Headteachers and Governors of Denbigh High School challenged a school uniform policy when a Muslim pupil was prevented from wearing a jilbab, a long coat-like garment, instead of the dress dictated by the school uniform policy, and this case examined human rights as well as discrimination issues.
School uniform in itself can lead to problems for schools. Depending on its cost and the number of elements required for it, some groups of pupils could be indirectly discriminated against on the basis that they may not be able to afford the full uniform. Schools have to be careful that they do not make their required uniform overly rigid (for example, insisting that items are bought from a particular supplier) as it may become very expensive.
With an increasing number of cases ending in tribunals and courts, and media coverage in this area continuing to grow, headteachers and governors are becoming more aware of the need to avoid indirectly discriminating against certain groups of pupils. While it is difficult to avoid this completely, there are certainly a number of measures that schools can employ, particularly by looking at alternative sanctions for particular policy breaches and, perhaps most importantly, by rigorously examining the policies they already have in place.
Chris Cook is a senior associate at SA Law. Chris can be contacted on 01727 798000 or firstname.lastname@example.org.