Chief Inspector of Education, Children's Services And Skills v The Interim Executive Board of Al-Hijrah School (Rev 2)

Direct discrimination under the Equality Act 2010 is assessed from the perspective of each person, not by comparing protected groups as a whole. In a mixed-sex school, strict segregation may amount to less favourable treatment even where both sexes are denied contact with the other. Mirrored detriment does not cancel discrimination. The relevant detriment was the effect of segregation on the quality and effectiveness of education, rather than segregation alone. Religious motivation and parental choice do not displace pupils’ statutory right to non-discriminatory education. The majority rejected wider arguments that the segregation caused greater detriment to girls or expressive harm because those arguments lacked an adequate evidential basis. Gloster LJ dissented on those latter issues.

Al-Hijrah School admitted boys and girls but, from Year 5, segregated them for lessons, breaks, clubs and trips. Following a June 2016 inspection, Ofsted reported that the policy restricted pupils’ social development and amounted to unlawful discrimination under the Equality Act 2010.

Jay J, on an application for judicial review, held that the segregation was not direct discrimination because both sexes were treated equivalently, and ordered Ofsted to remove the relevant passages: [2016] EWHC 2813 (Admin). Ofsted appealed. The central issues were whether direct discrimination had to be assessed individually, whether reciprocal detriment could constitute less favourable treatment, and whether the evidence established a greater detriment to girls or expressive harm.

The majority, Sir Terence Etherton MR and Beatson LJ, allowed Ofsted’s appeal on Appeal Grounds 1, 2 and 3. They held that the High Court had adopted the wrong legal approach by comparing boys and girls as groups.

1. Individual comparison. Section 13 of the Equality Act 2010 refers to treatment of a person. Each pupil must therefore be considered individually. A girl prevented from mixing with boys because she is a girl is treated less favourably than she would be if she were a boy. The same analysis applies to a boy prevented from mixing with girls.
2. Detriment and less favourable treatment. The evidence entitled Ofsted to find that the restriction was detrimental to pupils’ social development and the quality and effectiveness of their education. The fact that the detriment was reciprocal did not make it lawful. Same-sex interaction was available to each group, while opposite-sex interaction was denied to each pupil because of sex. Separate but equal treatment can therefore constitute direct discrimination, although segregation is not unlawful merely because it is segregation; the discriminatory impact must be established.
3. Statutory context. The exceptions in Schedule 3 and Schedule 11 to the Equality Act 2010 reinforced that Parliament recognised the potential for separate services or facilities to be discriminatory. The School’s religious motivation and parental approval were irrelevant to whether the statutory prohibition was engaged.
4. Procedural objections. Earlier Ofsted reports and the later amendment of the inspection report did not justify relief. The amendments elucidated reasons already present in the original report rather than introducing wholly new reasons. Ofsted was required to assess compliance with equality legislation in carrying out its inspection functions.
5. Appeal Grounds 4 and 5. The majority rejected the arguments that segregation caused greater practical detriment to girls or inherently caused expressive harm. The report contained no such finding and the necessary evidence was absent. The foreign authorities relied on could not simply be imported into domestic law. Gloster LJ would have allowed the appeal on these grounds, relying on the particular school context and the objective risk of reinforcing gender stereotypes.

• Court of Appeal (Civil Division) — [2017] EWCA Civ 1426 : majority allowed Ofsted’s appeal on Appeal Grounds 1–3 and rejected Appeal Grounds 4–5. Gloster LJ would also have allowed the appeal on Grounds 4–5.
• High Court, Administrative Court — [2016] EWHC 2813 (Admin) : granted judicial review on the grounds that the segregation was not unlawful direct discrimination and ordered Ofsted to excise the relevant passages from its report.