Australia: When an approach to uniforms demonstrates poor form (or discrimination)

Last Updated: 27 October 2017
Article by Michelle Dawson

A recent VCAT decision relating to a uniform policy in a Victorian school has highlighted the limitations which exist in both schools and the workplace.

In brief: When it comes to setting a uniform or prescribing requirements as to suitable employee attire or appearance in the workplace, employers generally expect to have significant discretion. To a point, that expectation is not unrealistic. However, a recent VCAT decision relating to a uniform policy in a Victorian school has highlighted the limitations to the discretion which exist – and employers should take note.

What you need to know

  • The law in Victoria protects against persons being treated unfavourably on the basis of their religious beliefs and activities in the areas of both education and employment.
  • The law in Victoria also prohibits schools and employers from imposing (or proposing to impose) an unreasonable requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with a particular religious belief or who undertake a particular religious activity.
  • Uniform policies can not prohibit attire where that attire (or aspect of appearance perhaps) connects an individual to their religion.

Background

The case, Arora v Melton Christian College (Human Rights) [2017] VCAT 1507, specifically considered and addressed some of the issues which arise when it comes to attire worn by a person, where that attire connects the person to their religion.

The case involved a five year old student whose religious beliefs lead to him having long, uncut hair and wearing a head covering known as a 'patka'. The student sought enrolment to and was essentially excluded from Melton Christian College after the principal said that the student would, if enrolled, be required to observe the school's uniform policy – which required boys to have short hair and prohibited head coverings related to a non-Christian faith.

The student's father made a claim of indirect discrimination which was dealt with in VCAT. In defence to the claim, the school argued that the student was not excluded from enrolment by the school (maintaining that the enrolment application had, rather, been withdrawn by the student's parents); that he had not been disadvantaged by not being able to attend the school; and that even if he was disadvantaged in this way, the requirement that he comply with the school's uniform policy was reasonable.

The school argued that if the student was in fact disadvantaged and it was not in fact reasonable for the school to require him to comply with its uniform policy, that its conduct was justified and not unlawful due to exceptions to the Equal Opportunity Act 2010 (Act) which permits schools operated for students of particular religious beliefs to exclude students who are not of that religious belief; and allow schools to set and enforce reasonable standards of dress, appearance and behaviour.

VCAT Findings

In determining the case, VCAT (assisted by the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) who intervened in the case to aid the interpretation of the law) found against the school, and determined that:

  • the school had in fact excluded the student from enrolment;
  • the student had been disadvantaged in not being able to attend the school;
  • in imposing its uniform policy on the student, the school unlawfully indirectly discriminated against him (in fact, VCAT observed that the school's uniform policy, in so far as it prohibited head gear of a non-Christian faith, could be described as "openly discriminatory" (although the claim was not of direct discrimination, rather of indirect discrimination));
  • the stated exceptions did not justify the school's actions;
  • the uniform policy was not reasonable in prohibiting students from wearing patkas and requiring boys to have short hair, for reasons which included:
    • that the school could make a reasonable adjustment to the uniform policy by allowing the student to wear a patka in the same colour of the school uniform;
    • that it was not reasonable for the school to accept enrolment applications from students of non-Christian faiths on condition that they do not look like they practice a non-Christian religion;
    • that it was not reasonable to exclude a student who wears a patka because of his religious belief or activity, from attending the school;
    • the school ought to have consulted with the school community and taken its views into account when including the prohibition in its uniform policy, but did not;
  • it would have been a reasonable adjustment (as contemplated by the Act) to make an exception to the uniform policy to:

    • enable the student to wear a patka at the school; and
    • have short hair;

    and the school ought to have made (but did not make) such adjustments.

The Decision

As at the date of writing, no orders by VCAT have been made and therefore the adverse ramifications which will result for the school are presently unknown. Nonetheless, the decision is an emphatic reminder that uniform policies (however informal they may be and whether in a school or a workplace) must not be discriminatory.

In the context of uniforms in the workplace or employment, employers should 'take away' from the case, the following:

  • Uniform policies can not prohibit attire where that attire (or aspect of appearance perhaps) connects an individual to their religion.
  • It is necessary to make exceptions to policies in relevant instances.
  • It is necessary to make reasonable adjustments to uniform policies in relevant instances. For instance, by permitting religious head coverings to be worn – perhaps so long as the head covering shares the colour of the uniform.
  • It may be necessary to undertake consultation with relevant parties (including employees and, where relevant perhaps their union/s) and to reflect their views when setting a uniform policy (particularly where a policy will include prohibitions which could have a similar outcome to that of the case discussed).
  • Exceptions to Victoria's equal opportunity laws will only apply in very narrow circumstances (although note that the specific exceptions relevant to the case discussed will generally not apply in an employment context).
  • There may in an employment context often be workplace health and safety considerations/reasons for the exclusion of head coverings or other types of attire. These may well put employers in a more defensible position than the school was in the case discussed, as in that case there were no relevant safety considerations as to the offending content of the uniform policy.

Conclusion

If you are unsure whether your business' uniform policy or practice is appropriately compliant, please contact our Workplace Relations team who can assist, inform and expertly advise you in this regard.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.

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