E, R (on the application of) v Governing Body of JFS & Ors

For an oversubscribed faith school, an admissions criterion must distinguish by faith rather than ethnicity. A criterion requiring a child to be regarded as Jewish by the Office of the Chief Rabbi, whether through descent or conversion, used Jewish ethnicity as the basis of selection. Its theological motivation did not alter that ground or make the resulting treatment lawful. The criterion therefore constituted direct race discrimination under the Race Relations Act 1976. If analysed as indirect discrimination, the criterion caused the required disparate disadvantage, while an aim whose purpose or inevitable effect was to enforce racial or ethnic distinctions was not legitimate. A faith school may give preference based on faith, but not on ethnicity.

Two applications for judicial review concerned the refusal by JFS, an oversubscribed Jewish faith school, to admit M and the Schools Adjudicator’s treatment of the school’s admission arrangements. M’s mother was Jewish by Progressive conversion, which the Office of the Chief Rabbi did not recognise. The appellant argued that the criterion was direct race discrimination, or alternatively indirect race discrimination that could not be justified.

Munby J rejected the substantive claims but found a breach of the duty under section 71 of the Race Relations Act 1976: [2008] EWHC 1535/1536 (Admin). The appeals were confined to whether the generic admissions criterion was unlawfully discriminatory. The central issue was whether the criterion was religious or racial and, if indirect, whether it pursued a legitimate aim by proportionate means.

1. Disposition. The appeals succeeded to the extent indicated. The court differed from Munby J on both the direct and indirect discrimination issues and invited counsel to assist with the appropriate order and the disposal of outstanding consequential issues.
2. Direct discrimination. Under section 1(1)(a) of the Race Relations Act 1976, the question is the ground or reason for the less favourable treatment, not the discriminator’s motive. The “but for” approach in James v Eastleigh Borough Council [1990] 2 AC 751 was not uniformly applicable. Nagarajan v London Regional Transport [2000] 1 AC 501 and Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 directed attention to the discriminator’s conscious or unconscious reasons. The theological reasons for the OCR’s definition were the motive for the criterion, not the ground of refusal.
3. Incorporated criterion and ethnicity. Where a policy expressly adopts an outside test, that test forms part of the ground of selection. JFS had adopted the OCR’s definition of Jewish status. Jews constituted a racial group principally defined by ethnic origin and additionally by conversion. Discrimination because a person was or was not Jewish was therefore discrimination on racial grounds, including perceived ethnicity and ethnicity attributed through another person. The reasoning in Mandla v Dowell-Lee [1983] 2 AC 548, together with Zarczynska v Levy [1978] IRLR 532 and English v Thomas Sanderson Blinds Ltd [2008] EWCA Civ 1421, supported that conclusion. Seide v Gillette Industries [1980] IRLR 427 was distinguishable because it concerned the victim’s religion rather than the discriminator’s religious belief. A faith school could select by faith, but not by ethnicity.
4. Indirect discrimination. Alternatively, the criterion was applied even-handedly but placed children not regarded as Jewish at a particular disadvantage and placed M at that disadvantage. Those matters satisfied sections 1(1A)(a) and (b). Under section 1(1A)(c), an aim whose purpose or inevitable effect was to make and enforce racial or ethnic distinctions could not be legitimate. It was unnecessary and artificial to examine residual proportionality on the assumption that the criterion was not ethnic.
5. The availability of a conversion route did not cure the initial discrimination, since making qualification harder for a racial or gender group remained discriminatory.

• Court of Appeal (Civil Division) — Appeals allowed to the extent indicated on the lawfulness of JFS’s admissions criterion: [2009] EWCA Civ 626.
• High Court of Justice, Queen’s Bench Division, Administrative Court — Munby J rejected the substantive claims but found a breach of the section 71 duty under the Race Relations Act 1976: [2008] EWHC 1535/1536 (Admin).