18 Oct 2017

In HM Chief Inspector of Education, Children's Services and Skills v The Interim Executive Board of Al-Hijrah School [2017] EWCA 1426, the Court of Appeal held that the segregation of girls and boys in a mixed school from age 9 was direct sex discrimination against both girls and boys.

Background

Section 85 of the Equality Act 2010 (the Act) prohibits discrimination by a school against a pupil in the way it provides education for the pupil and in the way it affords the pupil access to a benefit, facility or service. Section 13 of the Act defines discrimination as including where a person is treated less favourably because of their sex than those who are not of that sex.

Facts

Al-Hijrah School (the School) is a voluntary aided faith school in Birmingham for girls and boys aged between four and 16. The School has an Islamic ethos and for religious reasons believes that separation of the sexes from year 5 onwards is obligatory. It therefore segregates boys and girls aged 9 to 16 for all lessons, breaks, lunchtimes, school clubs and trips. This is one of the defining characteristics of the School. The policy is public and apparent to parents of potential pupils and to regulators.

Ofsted assessed the School as inadequate in "effectiveness of leadership and management", "personal development, behaviour and welfare of pupils" and "early years provision" in a June 2016 inspection report. One factor in the assessment was the segregation of pupils. There was no suggestion that girls were receiving a poorer level of education than boys but Ofsted concluded that the segregation limited the pupils' social development and the extent to which they were prepared for interaction with the opposite sex when they left school. Ofsted's view was that this constituted unlawful discrimination contrary to the Act. The School issued proceedings for judicial review of the inspection report and sought an order that it be quashed.

High Court decision

The High Court allowed the School's application and held that each sex had to be viewed as a group, with a comparison made between the groups. As both groups were treated the same, it could not be said that one group was being treated less favourably than the other so there was no discrimination. The High Court rejected Ofsted's submission that the segregation imposed a particular detriment on female pupils. Ofsted appealed.

Court of Appeal decision

The Court of Appeal allowed the appeal and overturned the High Court's decision. It held that the School's policy of strict segregation caused detriment and less favourable treatment for both male and female pupils respectively by reason of their sex, and was therefore contrary to the Act. By a majority of two to one, the Court held that the segregation did not impose a particular detriment on female pupils.

The High Court had been wrong to approach the question of whether there had been less favourable treatment by reason of sex by looking at each sex as a group. Each female pupil and each male pupil was entitled, as an individual, to freedom from direct discrimination. The School's policy prevented a female pupil from interacting with a male pupil only because of her sex; if she were a boy she would be able to interact with him, and vice versa. The policy was detrimental to each pupil as it adversely impacted on the quality and effectiveness of the education given to them by the School. Each pupil therefore suffered less favourable treatment by reason of their sex.

The Court held that the Act had to be given a wide and purposive interpretation and it was clear that Parliament did not envisage segregation by sex in co-educational schools. The fact that the School had a religious motive for the segregation and parents were happy with the policy were irrelevant factors. Each child had the right to be educated in a non-discriminatory manner.

Comment

Ofsted made it clear during the proceedings that if their appeal succeeded they would apply a consistent approach to all similarly organised schools, and there are thought to be around 25 similar schools in England (including some Jewish and Christian faith schools) that will be affected by this ruling. The Court of Appeal recommended that they be given time to put their houses in order since Ofsted had tacitly accepted the policy of segregation in the past. The judgment will not impact on single sex schools, as the Act gives them an exemption from discrimination in relation to admission.

The Court of Appeal's judgment is helpful in making it clear that where there is mirror discrimination (ie both genders suffer a detriment) there can still be a finding of less favourable treatment under section 13 of the Act, as that section protects the individual so a group comparison is not relevant.