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

The Court of Appeal considered whether the blanket segregation of boys and girls from Year 5 (age nine) onwards in a mixed-sex maintained faith school amounted to unlawful direct discrimination under the Equality Act 2010 (in particular ss.13 and 85). The majority held that the proper comparator is the individual pupil and that segregation which prevents an individual pupil mixing with pupils of the opposite sex is treatment "because of" sex and can amount to "less favourable treatment" for the purposes of s.13 read with s.85(2). The court allowed the appeal on Grounds 1–3, concluding that the judge below erred in comparing sexes as two interchangeable groups rather than analysing each pupil's position. The majority rejected the submission that segregation is automatically discriminatory only in the case of race (s.13(5)) and treated the law as allowing separate-but-equal provision to be discriminatory where its impact amounts to less favourable treatment. The majority declined to allow the appeal on the additional contention that segregation caused particular or expressive harm to girls in the wider societal context for lack of evidential foundation; Lady Justice Gloster dissented on that point, concluding that on the evidence the school’s arrangements did impose a greater detriment on girls.

This was an appeal from Jay J ([2016] EWHC 2813 (Admin)) concerning judicial review of Ofsted's June 2016 inspection report of Al-Hijrah School, a voluntary aided mixed-sex faith school which practised full segregation of boys and girls from Year 5. Ofsted's revised report had concluded that the school's segregation policy limited pupils' social development, did not give due regard to the public sector equality duty (s.149 EA 2010) and amounted to unlawful discrimination contrary to the Equality Act 2010.

Nature of the claim: the school sought to quash the inspection report and prevent publication, arguing (inter alia) that Ofsted had acted irrationally, that the report wrongly equated segregation with unlawful sex discrimination, and that the inspectors had not made findings of less favourable treatment.

Issues before the Court of Appeal:

• Whether segregation of boys and girls in a mixed school constitutes direct discrimination "because of" sex under EA 2010 s.13 when the groups are taught the same curriculum (s.85);
• Appropriate comparator and method of analysis (individual v group comparison under s.13 and s.23);
• Whether separate-but-equal provision can be unlawful where it operates to the detriment of pupils; and
• Whether segregation causes a particular detriment or "expressive harm" to girls given wider societal gendered power imbalances.

Court’s reasoning (concise): The majority held that s.13(1) speaks of treatment of a "person" and requires an individual-centred approach: an individual girl is prevented from socialising with boys because of her sex and therefore may be treated less favourably than she would be if of the opposite sex. The court accepted Ofsted’s reasonable assessment that segregation could cause detriment to pupils’ social development and that this detriment can amount to the kinds of denial of a "benefit, facility or service" or other detriment identified in s.85(2). The judge below erred by conducting a simultaneous group-vs-group comparison which neutralised the individual comparator analysis required by the Act. The majority rejected that s.13(5) (race exception) assists the school. On the contested question whether segregation caused greater practical or expressive harm to girls, the majority concluded there was no sufficient evidential foundation in the material before the court to uphold those specific contentions; Gloster LJ would have allowed those grounds on the evidence relating to library material, pupil work and break arrangements and on contextual material (The Casey Review).

Appeal allowed on Grounds 1–3. The Court of Appeal held that the correct legal approach to direct discrimination under EA 2010 s.13 is individual-focused: an individual pupil who is prevented from mixing with the opposite sex is treated less favourably because of sex where that restriction causes a detriment within s.85(2). The judge below erred by treating the sexes as interchangeable groups. The majority did not uphold the separate arguments that segregation caused particular or expressive harm to girls for lack of evidential basis; Gloster LJ would have allowed those additional grounds on the evidence presented.

Appeal from the Queen's Bench Division, Administrative Court (Jay J) [2016] EWHC 2813 (Admin). Judgment of the High Court: order requiring Ofsted to excise parts of the report referring to breach of the Equality Act 2010 and to give the school opportunity to comment. Ofsted was granted permission to appeal to the Court of Appeal, which delivered judgment on 13 October 2017 ([2017] EWCA Civ 1426).