...following the Court of Appeal's decision in the case HM Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School in October.
Al-Hijrah school had very strict segregation rules, requiring girls and boys to use separate corridors and play areas, and organising separate clubs and school trips. Girls in the school always ate their snacks and lunch after the boys.
Ofsted have a duty under the common inspection framework to review the school's discharge of its Equality Act 2010 obligations, as well as the requirements around modern British values.
In the judgement, consideration was given to the 25 or so schools that this may affect, they will have time to review their policies and practices.
The ruling only applies to co-educational schools. Single sex schools are given a specific exemption under the Equality Act.
Schools may be asking in light of the judgement whether any segregation is lawful. In the DfE's 2013 non-statutory guidance on the Equality Act, it is stated that schools:
"should check that there are no practices which could result in unfair, less favourable treatment of boys or girls"
The guidance sets out that:
"it is not necessarily unlawful to have some single sex classes in a mixed school, provided that this does not give children in such classes an unfair advantage or disadvantage when compared to children of the other sex in other classes"
The example is given of providing sex-education in a single sex setting, so long as the classes are provided to both boys and girls.
Following the Al-Hijrah judgement and the various press statements made by Ofsted, it is clear that Ofsted no longer envisages complete segregation in co-educational schools as acceptable and separation will need to be considered carefully, particularly with regard to non-teaching time in school such as breaks and lunchtimes.
In The Case of Sport
Although the act allows single-sex sports, schools must allow girls and boys to have equal opportunities to participate in comparable sporting activities. The exemption provides that segregation can occur:
"where the physical strength, stamina or physique of the average woman (or girl) would put her at a disadvantage in competition with the average man (or boy)"
However, the judgement as to whether girls would be at a physical disadvantage needs to take into account the particular group in question. It is very unlikely to be lawful to segregate younger children, or in cases where there is no requirement as to ability or skill. For example, if a school invited all girls across the school on a netball tour, regardless of their skill at that sport, it would be unlawful to exclude a boy from applying to join the tour.
Public Sector Equality Duty
Schools (whether maintained or Academy) should also be mindful of their public sector equality duty, whereby they must eliminate discrimination prohibited by the Equality Act and give relevant consideration to equality duties in all decisions and policies, keeping them under review on a continuing basis. It is good practice for schools to keep a written record to show that they have actively considered their equality duties and asked themselves relevant questions.
We anticipate that the Al-Hijrah judgement represents a starting point for further scrutiny by Ofsted into gender inequality. Schools might wish to consider reviewing whether their facilities for girls and boys are equivalent, sports teams are equally funded and resourced and encouragement for joining various clubs and societies is targeted to both boys and girls.
Should you require additional advice on this issue or other issues related to equalities please contact our Education team on 020 7665 0802.