The Interim Executive Board of X School v Chief Inspector of Education, Children's Services And Skills

Sex segregation in a mixed school is not automatically direct discrimination. The court must identify less favourable treatment by comparing the relevant groups under sections 13 and 23 of the Equality Act 2010. Where boys and girls are equally denied the opportunity to interact with the opposite sex, the treatment is symmetrical and neither group is treated less favourably than the other. Religious motivation and parental preference do not justify discrimination, but they are neutral where discrimination has not otherwise been established. The broad concepts of a benefit, facility and detriment do not eliminate the requirement to prove less favourable treatment. The decision was also procedurally unlawful because the inspection report relied on the rejected discrimination analysis.

An interim executive board challenged an Ofsted inspection report concerning an Islamic voluntary aided mixed school which segregated boys and girls from Year 5. The report found inadequate leadership and management partly because segregation limited social development, breached equality duties and amounted to unlawful discrimination. An earlier interim judgment concerning publication was given by Stuart-Smith J in [2016] EWHC 2004 (Admin). The challenge alleged, among other matters, legal error, irrationality, bias and impermissible revision of the report. The central issue was whether equal separation of boys and girls, without evidence of unequal educational quality or female inferiority, constituted unlawful sex discrimination.

1. Claim allowed in part. The court allowed the claim on grounds 4 and 5, dismissed grounds 1 and 2, and refused permission on the remaining grounds. The Defendant was required to reconsider and amend the report before publication.
2. Sections 13, 23 and 85 of the Equality Act 2010 require proof of less favourable treatment. Identifying treatment based on sex and a possible benefit, facility or detriment does not by itself establish discrimination.
3. The school’s segregation denied boys and girls the opportunity to interact with the opposite sex. Viewed simultaneously as two groups, each sex suffered the same denial. There was no material difference between the circumstances of the groups and no evidence that either was treated less favourably. The treatment was therefore symmetrical and non-discriminatory.
4. The concepts of benefit, facility and detriment are broad and can include intangible opportunities. They remain distinct from less favourable treatment. Section 13(5), which expressly treats racial segregation as discriminatory, provided only limited assistance and could not be extended to sex segregation by implication.
5. Religious belief and parental preference could not override the statutory prohibition of discrimination. They were nevertheless neutral in this case because the Defendant had not established less favourable treatment. Nor had it established that segregation particularly disadvantaged girls or conveyed female inferiority. The reasoning in Brown v Board of Education was not directly applicable to voluntary sex segregation in a United Kingdom faith school without supporting evidence.
6. The Defendant was entitled to consider compliance with the Equality Act 2010 when inspecting the school. However, the parts of the report founded on unlawful sex discrimination could not stand. The Defendant had to excise or reconsider them and give the Claimant a further opportunity to comment under section 13(2)(b) of the Education Act 2005.
7. Although the court considered that, on the Defendant’s assumed legal case, fairness would have required a longer opportunity to reflect and respond to the changed position, that point could not affect the outcome because other independent deficiencies justified the inadequate leadership and management assessment.

The judgment was a first-instance judicial review decision. An earlier interim judgment concerning publication was given by Stuart-Smith J in [2016] EWHC 2004 (Admin) . Permission to appeal was granted to both parties on specified grounds.