TTT, by her mother and litigation friend UUU, R (on the application of) v Michaela Community Schools Trust

Article 9 does not confer an absolute right to manifest religion at any chosen time and place. Where a pupil has accepted a school’s regime and has a genuine choice to attend a suitable alternative school, or can manifest the belief in a modified way, interference may not be established. If it is, proportionality requires the four-stage Bank Mellat test, with appropriate weight given to the school’s expertise and predictive judgments. The prayer ritual policy was proportionate. Under the Equality Act 2010, particular disadvantage is relative disadvantage, not an additional serious threshold, and detriment is a low threshold assessed objectively from the claimant’s perspective. The indirect discrimination claim nevertheless failed on justification. The public sector equality duty is distinct from proportionality. A fixed-term exclusion normally requires a fair opportunity to respond; failure to hear the pupil made the second exclusion unlawful.

The claimant, a Muslim pupil, challenged a secular school’s prohibition on ritual prayer during the school day and two fixed-term exclusions. She alleged breaches of Article 9 of the European Convention on Human Rights, indirect religious discrimination under sections 85 and 19 of the Equality Act 2010, breach of the public sector equality duty under section 149, and procedural unfairness.

The court found that the prayer policy did not interfere with Article 9 rights and was proportionate in any event. It also rejected the indirect discrimination and public sector equality duty challenges. The first exclusion was procedurally fair, but the second was not. The central issues were whether the policy restricted protected religious observance, whether it was justified, and whether the second exclusion had been imposed without a fair opportunity to respond.

1. Article 9. A court may inquire whether a professed belief is genuine and sufficiently serious, intelligible and compatible with human dignity, but must not assess its objective validity by reference to religious orthodoxy. Performing an act pursuant to a perceived religious obligation is, in principle, a manifestation of belief. However, under the domestic approach in R (SB) v Governors of Denbigh High School [2006] UKHL 15, interference is not established where an individual has accepted an institution’s regime and has a genuine choice to manifest the belief elsewhere without undue hardship or inconvenience. A modified form of observance may also be sufficient.
2. Proportionality. Applying the four-stage test in Bank Mellat v HM Treasury (No 2) [2013] UKSC 38, the policy pursued legitimate aims connected with the school’s ethos, discipline, social cohesion, logistics and educational activities. No less intrusive workable measure was established. The adverse impact on Muslim pupils was outweighed by those aims. The court could give appropriate weight to the governing body’s and headteacher’s expertise and predictive judgments. The policy was proportionate under both Article 9(2) and section 19(2)(d) of the Equality Act 2010.
3. Equality Act claims. Particular disadvantage means relative disadvantage, not a separate requirement of serious or exceptional impact. Detriment is assessed from the claimant’s perspective, subject to an objective standard of reasonableness. The claimant was subjected to a detriment, but the policy was justified. The public sector equality duty is substantive, non-delegable and continuing, but it does not require a particular outcome or impose an automatic monitoring obligation. The governing body had due regard to the statutory needs. Any procedural defect would in any event have been highly unlikely to affect the outcome.
4. Exclusions. The statutory guidance and the school’s policy applied to fixed-term as well as permanent exclusions. The first two-day exclusion was not unfair in its urgent context and, alternatively, relief would have been refused under section 31(2A) of the Senior Courts Act 1981. The second five-day exclusion followed an investigation which interviewed other pupils but not the claimant, despite conflicts of evidence and a serious sanction. The claimant was entitled to respond. Ground 4(b) was upheld, and the statutory no-difference test was not satisfied.
5. Open justice. The evidence did not establish a sufficiently real and immediate risk to justify a private hearing. The school and headteacher could be identified, while anonymity was retained for the claimant, her mother, staff and pupils.

First-instance judicial review. Permission was granted on the papers by Lang J on 4 July 2023. No appeal is stated in the judgment.