In the case of Watkins-Singh, R (on the application of) v Aberdare Girls’ High School & An or [2008] EWHC 1865(Admin) (29 July 2008), Sarika Watkins-Singh, a fourteen year old school girl, successfully defended her right to wear the Kara (a steel bracelet) at school. This article explains Sarika’s case and its significance to Sikhs. Further, the author identifies some of the arguments presented by the school in trying to defend the case. Some ofthe school’s arguments are all too familiar. Four of the school’s arguments are identified as commonly used but misconceived excuses that frustrate racial harmony:

A) Erroneous comparisons

B) Expert advice

C) Precedent, and

D) Health and safety

The author considers whether the Metropolitan Police Service is adopting some of these familiar excuses.

Background

In April 2007 Sarika was asked by a teacher to remove her Kara. The school’s position was that the Kara contraven edits uniform policy, which permitted only one pair of plain ear studs and a wrist watch. Sarika sought an exemption from the policy claiming that the Kara was key to her identity and religion. Her request was refused on the basis that Sarika was not required to wear it as part of her religion (and that she may be singled out as different and thereby subject to bullying).

The School’s Appeals Committee refused an appeal in October 2007. When Sarika returned to the school after the half-term break in November 2007 wearing the Kara she was subject to a series of fixed term exclusions and was told by the Head Teacher that she would not be permitted to attend the school wearing the Kara but this was not a formal exclusion because Sarika had the option of removing the Kara thus dressing compatibly with the school’s uniform policy.

In January 2008 the School’s Disciplinary Committee upheld the Head Teacher’s decision on the basis that Sarika’s actions amounted to “open, deliberate and persistent defiance of the school’s authority”.

Sarika brought judicial review proceedings in the High Court on a number of grounds, including:

1. The decisions of the school to refuse to allow Sarika to wear the Kara were unlawful as indirect, unjustified race and religious discrimination;

2. The school had not complied with its obligations under section 71 of the Race Relations Act 1976 (RRA);

The acceptance of the right to wear the Kara

Indirect discrimination

The judge, Mr Justice Silber, had little hesitation in concluding that Sarika was the subject of acts of indirect discrimination on the grounds of race and religion when the school refused to allow her to attend wearing the Kara.

The issue to be resolved was whether Sarika was under a disadvantage or had suffered detriment. Mr Justice Silber concluded that there would be a particular disadvantage or detriment if Sarika was forbidden from wearing an item when she genuinely believed for reasonable grounds that wearing it was a matter of exceptional importance to her racial identity or religious belief, and the wearing ofthe item could be shown objectively to be of exceptional importance to her religion or race, even if it was not an actual requirement.

She did not need to show that the item was a requirement of her religion: that would be setting the threshold too high. There was little doubt that Sarika genuinely attached exceptional importance to wearing her Kara and thereby satisfied the subjective requirement.

Also, the court accepted expert evidence as to the objective significance of the Kara. Professor Nesbitt’s evidence stated:

“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”.

What the school had to justify was the discriminatory means to achieve the aim of having a uniform policy with its advantages. None of the arguments put forward by the school justified the refusal to permit Sarika to wear the Kara.

Previous cases involving the niqab the jihab were distinguished as, amongst other things, they were much more visible to the observer than the unostentatious Kara, which was only 5mm wide.

Section 71 RRA

This section requires public bodies (thus includes police forces) to give advance consideration to issues of race discrimination before making any policy decision that maybe affected by them. The duties under section 71 must be fulfilled whenever a decision is taken which may have an impact on the matters contained in it. These obligations arean “essential preliminary to such a decision, in attention to which is both unlawful and bad government”

Mr Justice Silber was very critical of the school on this issue. The school had failed to appreciate the exceptional significance to Sikhs of the need to wear the Kara and failed to “promote equality of opportunity and good relations between persons of different racial groups”.

The rejection of some familiar excuses

Erroneous comparisons

But Mr Justice Silber noted:

“Finally, I must deal with the approach of …a Governor of the school… 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.

1 R. (on the application of X) v Headteachers and Governors of Y School [2007] EWHC 298(Admin), [2008] 1 All E.R. 249

2R. (on the application of Begum) v Denbigh High School Governors [2006] UKHL 15,[2007] 1 A.C. 10012

Erroneous comparisons are often cited to justify discriminatory policies, for example, individuals often ask “why can’t we have a White Police Association?” It was not too long ago when the courts, whilst considering whether a pregnant female employee was treated less favourably than a male employee, would make comparisons to hypothetical male employees who were on sickness absence. Such misconceptions appear to becaused by the lack of consideration to difference - what Mr Justice Silber refers to as “the critical importance”.

Experts

The school attempted to provide so-called expert evidence from a Mr Jagwinder Singh. The evidence, which lacked a statement of truth, was heavily criticised by Mr JusticeSilber who found:

“In those circumstances, I am bound to conclude that I cannot attach any weight to his evidence”.

Individuals that purport to be experts can be extremely harmful if they lack sufficient understanding of their topic. Harm can be caused not only to Sikh rights, but also to the rights of other religious groups, particularly with the growing number of religious discrimination cases. Professor Nesbitt provided detailed, credible evidence; the professor’s race was clearly irrelevant. Being a Sikh did not equate to being an expert on Sikhism and it is to Mr Justice Silber’s credit that he dismissed Mr Jagwinder Singh’s evidence.

It is perhaps not difficult for a decision maker to identify someone of the same minority group as the person disadvantaged and to use that person, consciously or otherwise motivated, to outwardly support a discriminatory policy or decision.

In 2007, The Metropolitan Police Sikh Association (MPSA) set up a Frequently Asked Question (FAQ) Team providing advice on Sikh / policing matters. Only accurate guidance on Sikhism is provided, consulting with senior theologians and Sikh leaders. In addition, the MPSA have set up an extensive Sikh reference library. The Metropolitan PoliceService and other police forces are regularly customers ofthe FAQ Team.

3 Webb v EMO Air Cargo (UK) Ltd [1992] 2 All E.R. 43 CA (later reversed by the House of Lords after a referral to the European Courts of Justice)

Precedent

Mr Justice Silber said:“The [school adopted a] “floodgates” argument by saying that if non-compulsory items (such as the Kara) were allowed to be worn by pupils, then other pupils would all demand to be allowed to wear all other manner of items. I am unable to accept this argument because the claimant in this case falls in an exceptional category because it was a matter of exceptional importance to her as a Sikh to wear the Kara;

Miss Rosser [head teacher] refers to the wearing of acrucifix as being of similar importance to wearing the Kara but there is no evidence that the wearing of it is regarded in the same way as the wearing of 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 pupilsin the school were being discriminated against”. I am boundt o say that I agree with Miss Mountfield [Counsel for Sarika ]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 theother 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”

The school’s argument that it did not wish to set a precedent is also a familiar excuse for an inflexible, discriminatory policy. The Metropolitan Police Service( MPS) has recently refused to fund the investigation in India, into the remaining suspects in the Surjit Athwal case,a so-called “honour killing”. The MPS’ reasoning is that this would set a precedent. In the same way that the school in Sarika’s case failed to provide evidence, the MPS has provided no evidence to support its precedent argument.

The MPS should perhaps, consider Mr Justice Silber’s comments regarding the need to properly consider exceptional circumstances. For example the MPS may wish to consider that: Surjit was a victim of a so-called honour killing, she was last seen in the UK, she is British born and the co-suspects have already been convicted inthe UK by the MPS. Even if bringing Surjit’s murderers to justice does create a precedent, then it is perhaps a precedent that should be set. (This article was written prior to the appointment of Commissioner Sir Paul Stephenson who has now indicated support of the MPSA’s projects on ‘honour crimes’.)

Health & Safety

Mr Justice Silber stated that:

“I should repeat that the health and safety factors relied on by [the school] as justifying [its] 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”.

Sarika’s pragmatic approach is commendable. The MPSA provided evidence to support her case, pointing out that the MPS allows police officers to wear the Kara, even in operational roles. The MPS, in this respect, sets a good example to other public bodies.

Conclusion: Not a given right, but a right that mustbe asserted.

Sarika’s case may seem at odds with the previous uniform policy cases. But this was not an Article 9 ECHR claim: Sarika’s case was a discrimination and equality claim under the RRA and the Employment Act.

Importantly, Mr Justice Silber emphatically pointed out that this case was limited to its facts. He stated that the exception was dependent on two “very unusual” facts: Firstly, the honest belief of Sarika that the wearing of the Kara was of exceptional importance to her for racialor religious reasons. Secondly, the unobtrusive nature of the Kara itself.

Mr Justice Silber carefully considered Sarika’s personal beliefs and did not dismiss this case as just another article of faith case. As in Mandla v Dowell Lee , the British courts demonstrated, with the assistance of Professor Nesbitt, a willingness to understand the unique features of theSikh religion.

Sarika’s case was simply accepted to be exceptional. Her honesty and integrity won the day.

There is no suggestion that the government would now introduce a positive right, without derogation, for a Sikh to wear a Kara in school. But the position for Sikhs wishing to wear the Kara is simple – understand its importance ,believe in its importance and be prepared to fight for the right to wear it. And don’t wear a large fancy one.

Mukhtiar (Micky) Singh Executive Member - MPSA February 2009

Mukhtiar (Micky) Singh, LLB, is a Detective Inspector in the MPS and an executive member (and former chairman) of the MPSA. He is a member of the Employment Law Bar Association.