R (on the application of E) v The Governing Body of JFS and the Admissions Appeal Panel of JFS and others

Less favourable treatment is direct discrimination where the factual criterion determining the decision is inherently based on a protected characteristic. The discriminator’s benign or religious motive does not alter the ground of treatment. An inquiry into mental processes is needed only where the operative criterion is unclear.

For section 1(1)(a) of the Race Relations Act 1976, ethnic origins include ancestry and descent. A criterion identifying religious status through matrilineal descent from a particular people is therefore ethnically based. Its use to determine school admission constitutes direct racial discrimination, even though it derives from sincerely held religious law. Direct discrimination cannot be justified and is mutually exclusive with indirect discrimination.

R (on the application of E) v The Governing Body of JFS and the Admissions Appeal Panel of JFS and others concerned an oversubscribed Jewish faith school which preferred applicants recognised as Jewish by the Office of the Chief Rabbi. Recognition ordinarily required matrilineal Jewish descent or an Orthodox conversion. M’s mother had converted before his birth under non-Orthodox auspices, so M was refused consideration for admission despite practising Masorti Judaism.

Munby J dismissed the judicial review claims, apart from granting a declaration concerning section 71 of the Race Relations Act 1976: [2008] EWHC 1535 (Admin). The Court of Appeal allowed E’s appeals and held that the admissions criterion was directly discriminatory: [2009] EWCA Civ 626.

The central issue was whether the descent-based criterion amounted to direct discrimination on grounds of ethnic origins or merely religious discrimination. Indirect discrimination and the United Synagogue’s liability for costs also arose.

1. Substantive appeal dismissed by a majority of five to four. Lord Phillips, Lady Hale, Lord Mance, Lord Kerr and Lord Clarke held that JFS had directly discriminated against M on racial grounds contrary to sections 1(1)(a), 3(1) and 17 of the Race Relations Act 1976.

2. The ground of direct discrimination is identified by asking what factual criterion determined the treatment. A benign motive, including compliance with sincerely held religious law, does not change the ground on which the criterion operates. Where the criterion is explicit, no inquiry into the discriminator’s mental processes is required. Where it is unclear, those processes may be examined to identify the operative ground, but not to justify discrimination already established. The majority applied R v Birmingham City Council, Ex p Equal Opportunities Commission [1989] AC 1155, James v Eastleigh Borough Council [1990] 2 AC 751 and Nagarajan v London Regional Transport [2000] 1 AC 501.

3. Ethnic origins are not confined to present membership of an ethnic group identified by the Mandla v Dowell Lee test. They include ancestry and descent. The Orthodox criterion identified Jewish status through matrilineal descent from the Jewish people, subject to conversion. It was therefore based on ethnic origins as well as religion. M was treated less favourably because he lacked the required matrilineal ancestry. The criterion consequently constituted direct racial discrimination.

4. Direct and indirect discrimination are mutually exclusive. Direct discrimination admits no justification defence. The exemption for designated faith schools in section 50(1) of the Equality Act 2006 concerns religious discrimination and does not authorise racial discrimination.

5. Six Justices indicated that, had the policy instead fallen within indirect discrimination, JFS had not justified it under section 1(1A)(c) of the Race Relations Act 1976. The school’s Orthodox religious objective was capable of being legitimate, but it had not demonstrated that the rigid descent criterion was appropriate and necessary after weighing its need against the serious disadvantage to excluded children. This was alternative reasoning because the controlling holding was direct discrimination.

6. Lord Hope, Lord Rodger, Lord Walker and Lord Brown dissented on direct discrimination. They considered the operative ground religious. Lord Hope and Lord Walker nevertheless considered the policy indirectly discriminatory and unjustified; Lord Rodger and Lord Brown considered it justified.

7. The United Synagogue’s costs appeal was allowed in part. Its expanded role justified liability for 20% of E’s Court of Appeal costs, but its protection from costs at first instance remained effective. The Secretary of State’s costs appeal was dismissed.

• United Kingdom Supreme Court: By [2009] UKSC 15, dismissed JFS’s substantive appeal by a five-to-four majority, upheld the finding of direct racial discrimination, and allowed the United Synagogue’s costs appeal in part.
• Court of Appeal: By [2009] EWCA Civ 626, [2009] 4 All ER 375, allowed E’s appeals in both judicial review proceedings and held that the admissions criterion was directly discriminatory.
• High Court, Administrative Court: By [2008] EWHC 1535 (Admin), [2008] ELR 445, Munby J dismissed both judicial review claims except for granting a declaration that JFS had breached section 71 of the Race Relations Act 1976.
• Schools Adjudicator: Upheld E’s objection to the undersubscription criteria but rejected his objection to the oversubscription criterion at issue in the appeal.