29 November, 2016
In the case of R (On the application of The Interim Executive Board of X School) v Her Majesty's Chief Inspector of Education, Children's Services and Skills, The Interim Board of X School mounted a successful claim for judicial review of an Ofsted report, which had concluded that the School was in breach of the provisions of the Equality Act 2010 relating to discrimination.
The School is a voluntary aided Islamic faith school, which segregates male and female pupils from the age of 9 upwards. It was noted in the case that the majority of such faith schools do not segregate on this basis, however there are several in the UK which adopt this practice.
In June 2016, Ofsted inspected the School and proposed to publish its report which criticised the School's policy of mandatory segregation, amongst other things. However, the School argued that parents whose children attended the School, were well aware of the policy as it reflected the School's Islamic ethos.
Ofsted remained of the position that the policy of segregation had a negative impact on pupils in that they would be underprepared for interaction with the opposite gender upon leaving school and potentially hindered "pupils' ability this practice on pupils' chances to develop into socially confident individuals with peers from the opposite gender."
Thus based on the above assertions, Ofsted considered the segregation of pupils at the School was unlawful for the purposes of the Equality Act 2010, particularly section 13(5) which relates to segregation and section 85 which lists the provisions directly applicable to educational settings.
However, those assertions did not carry with them any evidence to suggest that either gender at the School received an education of inferior quality than the other. As such, the School brought about a judicial review challenge on this basis.
Ofsted argued that the segregation constituted less favourable treatment, and thus contrary to the relevant provisions of the Act in that both sexes suffered a loss of opportunity to interact with the other; which directly impacted on their ability to socialise confidently in situations upon leaving school. Ofsted also contended that the segregation was put in place because female pupils were seen as inferior to their male counterparts.
The High Court dismissed those arguments on the basis that there was no evidence that female pupils were considered inferior; in addition to the fact that there was no 'less favourable treatment' for the purposes of the Act, as both sexes were being denied the opportunity to socialise with each other therefore neither suffered less favourable treatment than the other. It was held that here was no discrimination.
Notwithstanding the above, both parties have been granted leave to appeal the decision.
The case emphasises the necessity to bear in mind the provisions of the Equality Act 2010, in particular discrimination. Specifically, careful consideration should be paid to the circumstances which issues may arise, as this may not necessarily be within an employment context.
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