Afro hair, a protected characteristic under the Equality Act 2010?

Melvyna Mumunie, Senior Associate at Cole Khan Solicitors LLP considers the legal implications of enshrining Afro hair as a protected characteristic under the Equality Act 2010

On 10 September 2024, the World Afro Day (WAD) campaign took its cause to Parliament.

With support from 100 campaigners and individuals including, Beverley Knight, Mel B, Patrick Hutchinson, Fleur East and Evelyn Forde MBE, WAD submitted an open letter to Parliament calling for a vote on legal protection against Afro hair discrimination.

WAD’s campaign seeks to address the persistent and often overlooked issue of discrimination based on Afro-textured hair affecting adults and children in the UK.

According to WAD’s open letter to Parliament, 98% of UK Black people feel that their identity is compromised to fit in at workplaces, with their hair being a key issue. Additionally, the 2023 Workplace Hair Acceptance report found that 1 in 3 company decision-makers could possibly deny a Black woman a job because of her natural Afro hair and then reverse the decision if she straightened her hair.

Outside of the research there are clear historic and present-day examples of people being treated unfavourably or subjected to unacceptable conduct because their Afro hair is deemed unprofessional or unacceptable.

The open letter proposes that Afro hair be recognised as a protected characteristic under the Equality Act 2010 (the EqA) in its own right.

However, is a legislative change necessary to ensure equality and fair treatment or does the law already protect individuals from Afro hair discrimination?

What is Afro hair discrimination?

The WAD campaign highlights that Afro hair and how it may be worn or styled is not just a style choice but an integral part of the identity of many Black people. As such, it is argued that Afro hair warrants protection from discriminatory practices in the same way that characteristics like, sex, religion, race and age are.

If Afro hair is enshrined as a protected characteristic under the EqA, individuals will have the right to bring a claim of Afro hair discrimination against employers, schools, public bodies and other public service providers. It’s expected that such a claim would arise where an individual is treated unfairly or less favourably because of or in connection with their natural Afro-textured hair or the protective styles, such as braids, locs, cornrows, twists, etc. that they wear.

The Equality Act 2010

The EqA protects individuals from discrimination, harassment and victimisation in the workplace and in wider society. The Act sets out the protected characteristics that are protected by law (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation) and the conduct, treatment and behaviour that is unlawful.

As a protected characteristics under the Act, the meaning of “race” includes: skin colour, nationality, ethnic or national origins. The latter, could, in theory encompass Afro hair.

Current protection of Afro hair discrimination under the Equality Act 2010

Where an individual is discriminated against in connection with something that relates to their ethnic or national origin i.e. their hair, they may bring a race discrimination claim.

The same follows in respect of the protected characteristic, religion or belief.

The following case is an example of how the protected characteristic of race has been used to bring successful discrimination claims where the discriminatory treatment complained of relates to Afro hair.

Ruby Williams v Urswick School

In 2020, Ruby Williams brought a claim against her secondary school Urswick School in the County Court on grounds of race discrimination. Ruby Williams was repeatedly refused entry to her school or sent home while in years 10 and 11 because the school had a policy which banned big Afro hairstyles. The student wore her hair in a big Afro hairstyle. The student was told to change her hairstyle to one consistent with the school’s uniform policy, which said that hair must be of a “reasonable size”. The student tried numerous hairstyles to comply with the policy, but many would damage her hair, or were time consuming to do or expensive. The student latterly developed signs of depression and anxiety about going to school and the school was informed of this by her medical professionals. The school did not change its approach. The student brought a claim against the school which centered on the school’s policy disproportionately affecting Black students, even though it did not explicitly target them. The school failed to respond to the claim and the County Court entered into a default judgment in the student’s favour. The student subsequently entered into a settlement with the school.

Claims where the discriminatory treatment complained of relates to Afro hair have also successfully been brought using the protected characteristic of religion or belief.

Chikayzea Flanders v Fulham Boys School

In 2017, 12 year old student, Chikayzea Flanders brought a claim against his secondary school, Fulham Boys school in the County Court on grounds of religion or belief discrimination. On the student’s first day of secondary school, the school informed him that his dreadlocked hair, which he wore tied up, did not comply with the school’s uniform and appearance policy and had to be cut off or he would face suspension. His dreadlocks were a fundamental tenet of his Rastafarian beliefs and religion. Having refused to cut off his dreadlocks, the student was subsequently taught in isolation from other students. He went on to leave the school. The student brought a claim against the school in the County Court. The County Court subsequently found in the student’s favour and ordered that the school pay the student compensation and his litigation costs.

The Equality and Human Rights Commission intervened in both these cases.

WAD’s campaign argues that the current legal framework is insufficient because it does not address direct Afro hair discrimination and that the call to make Afro hair a protected characteristic would provide clearer guidance for both employers and individuals on what constitutes discrimination and how to prevent it.

However, these cases demonstrate that Afro hair discrimination can already be challenged by reference to indirect discrimination under the protected characteristics of race or religion or belief. Therefore, we consider below some of the advantages and disadvantages of taking the additional step proposed by WAD.

Advantages of proposal

1.      By explicitly making Afro hair a protected characteristic, it would leave no doubt that any form of discrimination against Afro-textured hair is unlawful. This would offer greater certainty to both employers and employees about what conduct and policies are acceptable in the workplace. It is likely that the Equality and Human Rights Commission would also provide guidance on this issue, which may be helpful in adjusting societal norms.

2.      It would encourage a more inclusive environment in workplaces and schools, where Afro-textured hair is accepted as part of an individual’s racial and cultural identity without the need to conform to Eurocentric standards of appearance.

3.      With Afro hair specifically protected, individuals facing discrimination may avoid having to discern at the Employment Tribunal preliminary issue stage whether they may rely on race as a protected characteristic in their discrimination claim. This can be a costly and complex additional step which may be tactically utilised by Respondents to price individuals out of justice.

Disadvantages of proposal

1.      Since Afro hair is already linked to race, creating a separate protected characteristic could lead to confusion or unnecessary legal overlap. Judges and lawyers will likely question why a new protected characteristic is required when race already serves as an umbrella for such cases. Similar arguments were forthcoming when proposals were called to enshrine the menopause as a protected characteristic. Menopause was not made a protected characteristic despite a Woman and Equalities Committee consultation and recommendations.

2.      The addition of Afro hair as a protected characteristic may require businesses to update their policies, potentially placing an additional compliance “burden” on employers, particularly smaller businesses that lack resources for comprehensive legal reviews. Employers who do wish to “do the right thing” may not take issue with this, and indeed, some employers (and schools) have taken proactive steps to address these issues by adopting the Halo Code

3.      By focusing specifically on Afro hair, there’s a risk that protections for other cultural or religious hairstyles or coverings might not receive the same attention. This could create a piecemeal approach to discrimination protection based on appearance.

Are additional legal protections necessary?

While the EqA can and does provide protection against Afro hair discrimination under the characteristic of race and where relevant religion or belief, WAD’s campaign raises a valid point about the gaps in current enforcement and societal attitudes. The existing law may be sufficient in theory, but in practice, people still experience significant discrimination based on their natural hair.

For example, many Black employees still feel pressured to straighten their hair or wear wigs in order to fit into “professional” environments. Schools continue to send students home for wearing hairstyles that reflect their cultural identity. These incidents suggest that more robust, explicit legal protections could help to combat ingrained biases and prejudices that go unchecked.

Perhaps there is a bigger discussion to be had about the effectiveness and enforcement of our discrimination legislation.

This blog has been written by Melvyna Mumunie, Senior Associate at Cole Khan Solicitors LLP.

If you are concerned about having been discriminated against in the workplace, please contact any of the team at Cole Khan for expert advice on 0207 406 7440 or hello@colekhan.co.uk