DEC-S2009-010 - Full Case Report

Equal Status Acts 2000 - 2008

Equality Officer Decision

DEC-S2009-010

A Male Student

V

A Secondary School 

Date of Issue  3 February 2009

Key words

Equal Status Acts 2000 - 2008  -   Direct discrimination, section 3(1)(a)   -    Gender ground, section 3(2)(a)   -  Supply of goods and services, section 5(1)   -   Length of  a male student’s hair

1       Delegation under the Equal Status Acts 2000 - 2008

This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts 2000 - 2004 on 10 May 2005.  In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, the Director has delegated the complaint to myself, Brian O’Byrne, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts 2000 - 2008. My investigation commenced on 27 May 2008 and the Hearing of the complaint was held on 10 October 2008.

2          Summary of Claim

This dispute concerns a complaint by a male secondary school student that he was discriminated against by a Secondary School in being asked to cut his hair to collar length. The complainant maintained that discrimination occurred on the gender ground as female students in the school were not bound by this rule. The student also claims that on one occasion he was personally harassed by a specific teacher over not getting his hair cut, contrary to section 11 of the Equal Status Acts. The claim was notified to the respondents on 12 January 2005.

3          Evidence of Parties at Hearing

3.1       At the outset of the Hearing, the complainant’s representative requested that the case be afforded anonymity because of the student’s age at the time (15) and this was agreed by all parties

The student gave evidence that during his Junior Certificate year he decided to let his hair grow as, like most teenagers, he wanted to establish his own identity among his peers and in society generally. However, when he began to grow his hair he was quickly reminded by the Third Year Head and other teachers that the school’s Code of Conduct required that boys not have unusually long hair and he was advised to get his hair cut. . When he declined to get his hair cut after a number of requests he was suspended for a few days until he eventually complied.

During this period, he claimed that he was verbally attacked by another teacher while talking to school friends outside the school. He maintained that the teacher  ”screamed at him” asking why he was still refusing to get his hair cut. He said that the teacher’s outburst was so unsettling that his friends backed away. He claims that the teacher’s actions on that day constituted harassment.

The student described how the situation affected his studies and resulted in him withdrawing into himself. He said that he eventually left the school before sitting the Leaving Certificate to take up a PLC course.

At the Hearing, the student’s father described how his son completely withdrew from the family and even ate separately at home. He said that he became very concerned about his son’s well-being and worried about the development of suicidal tendencies. The father said that he actively engaged with the school in an effort to resolve the matter but the school was not prepared to deal with the issue in a reasonable manner.

At the Hearing, the complainant’s representative made the point that long hair for men has been fashionable for centuries and that, over the years, both male and females have always endeavoured to follow conventional trends in hair styles. In this regard, the representative drew attention at the Hearing to a photograph from the 1870s of  the original male founder of the school in question showing him with shoulder length hair.

The complainant’s representative also drew attention to the Students Handbook at the Hearing which specifically states that “hairstyles should not be extreme or such as to attract undue attention” and that it is not permitted to have “unusually long or short hair or pony tails (boys)”. In evidence, photographs were shown at the Hearing of the student from the period in question with well-groomed collar length hair which the representative argued did not fall into the categories of “extreme”, “unusually long” or likely to “attract undue attention”.

At the Hearing, the respondents accepted that the student’s account of what had occurred in the school was reasonably factual but denied the allegation that a teacher had engaged in harassment. The respondents stated that the various teachers involved were simply applying the rules of the school which had been presented to all parents on enrolment.

4          Respondents’ Arguments

4.1       In defending their decision to ask the complainant to have his hair cut, the respondents maintain that the school was adhering to its rules and regulations relating to grooming and hair length and that these rules had been accepted by the student’s parents on his enrolment.

The respondents also refer to a number of UK precedent cases which they maintain support their position that discrimination was not a factor. These include a number of EAT cases from the UK where it was accepted that different rules with regard to uniform (Schmidt v Austick’ Bookshop [1977] IRLR 360 and Burrett [1994] IRLR 7) and hair length (Smith v Safeway PLC [1996] IRLR456) can apply to men and women in workplace situations.

4.2       With regard to school dress codes, the respondents rely specifically on the ruling of the Northern Ireland High Court in the case of a Judicial Review Application from theBoard of Governors of Ballyclare High School (REF WEAL4827T  Delivered 18/1/2008) where the school sought a declaration that the adoption and application of the school’s uniform policy and its disciplinary policy were lawful and in particular that the policies were not discriminatory under the Sex Discrimination (Northern Ireland) Order.

In his judgement, Judge Weatherupe found that, overall, the requirements of the code taken as a package were not more onerous on males than females and that the code was not unlawful under the Sex Discrimination (NI) Order 1976. However, he did not deliver the formal declaration sought - that the adoption and application of the school’s uniform policy and the disciplinary policy was lawful and not discriminatory under the Sex Discrimination (Northern Ireland) Order 1976.

5          Complainant’s Arguments

5.1       For their part, the complainants have identified a number of Irish employment equality cases where discrimination was found to have occurred and on which they wish to rely as precedents. These include Pantry Franchise Ireland Ltd v A Worker (Labour Court EED 9310) where hair length was the issue, Keane v CERT (Equality Tribunal Dec-E-2000/08) regarding work uniform and O’Byrne v Dunnes Stores (Labour Court EED 0314) where an employee’s goatee beard was the issue.

6          Conclusions of the Equality Officer

6.1       Section 38A (1) of the Equal Status Acts 2000 to 2008 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that he/she suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.

In this particular case, the male student claims that he was discriminated against on the Gender ground in that he was asked to get his hair cut while female students were not.

6.2       In considering the Ballyclare and other precedent cases in UK law relied upon by the respondents, I note that all delivered different opposing outcomes to similar cases heard under Irish law (apart from the issue in the Ballyclare case which, to my knowledge, has not as yet come before the courts in Ireland)

In the Ballyclare case, the Judge drew a specific comparison between boys not being allowed to wear long hair and girls not being allowed to wear school trousers. This would not, however, appear to be an appropriate comparison as girls are free to wear trousers as soon as they leave the confines of the school each day while boys cannot change the length of their hair at the end of the school day.

This view echoes the ruling inPantry Franchise Ireland Ltd v A Worker which found that a male employee had been discriminated against by being asked to get his hair cut. In that case, the Labour Court recognised the right of the individual to determine their own appearance and highlighted the impact that such a rule had on the employee outside of work

5.4       O’Byrne v Dunnes Stores also involved this same principle (the right of the individual to determine their own appearance) where an employee’s goatee beard was the issue. In that case, the Labour Court stated that

“In considering whether a dress code operates unfavourably with regard to one or other of the sexes, the conventional standard of appearance is the appropriate criterion to be applied. Other factors to be considered are the relative degree of comfort or discomfort which one or other of the sexes may experience in complying with the code and the relative degree to which it impinges on the right of men and women to determine their own appearance, particularly where it extends outside the workplace (where it relates to such matters as hair length or in this case a beard). A clear distinction must also be drawn between rules which relate to appearance and those imposed by the requirements of hygiene and safety.  

Taking the dress code as a whole, the Court is satisfied that it operated in the case of the complainant in a way which restricted his freedom to determine his own appearance to a significantly greater degree than it does in the case of women. This constituted unfavourable treatment on grounds of gender.”

5.5       The following is a further extract from the Labour Court ruling in O’Byrne v Dunnes Stores :

 “Dress codes by their nature apply different rules to men and women and it would be absurd to suggest that they should do otherwise. Anti-discrimination law does not require that men and women be treated the same in every circumstance. What it requires is that they be treated equally.”

In considering this statement and its relevance to the case before me, I consider that there is clear evidence to demonstrate that the school in questiondoes not treat boys and girls equally. In the case of a female student, as soon as she leaves the school grounds, she is free to transform her appearance and wear her hair in whichever modern conventional style she chooses. This is not the case for a male student whose freedom to determine his own appearance has been seriously restricted by the requirements imposed on him by the school regarding the length of his hair. Consequently, the hair-length requirement imposed on a male student has a much greater impact on him after school than the requirements placed on female students.

5.6        Having considered the arguments of both sides at length, on balance I find the Labour Court rulings more persuasive as I consider that the school’s code of behaviour unfairly impinges on the right of males to determine their own appearance by placing a disproportionate burden on male students with regard to hair length. As long as male students agree to be bound by the same rules and conditions that apply to female students with regard to hair appearance, grooming and cleanliness, they should not be treated any differently, in my opinion.

Accordingly, I find that the male student in this case did suffer less favourable treatment compared to female students in the school and that the school’s actions constituted discrimination on the gender ground contrary to the provisions of the Equal Status Acts 2000 - 2008.

7    Decision

I find that a prima facie case of discrimination has been established by the complainant on the Gender ground  in terms of sections 3(1) and 3(2)(a) of the Equal Status Acts 2000 - 2008 and that the respondents have failed to rebut the allegation. I order that the complainant be paid the sum of  €1000 for the upset and distress caused.

With regard to the allegation of harassment, I find that insufficient evidence was put before me to support the claim.

Brian O'Byrne

Equality Officer

3  February 2009