Gender Segregation Was Direct Discrimination

...In HM Chief Inspector of Education, Children's Services and Skills (HMCI) v The Interim Executive Board of Al-Hijrah School (the School).

Background

Al-Hijrah School is a voluntary aided faith school for boys and girls aged between 4 and 16. It has an Islamic ethos and, specifically for religious reasons, believes that the separation of boys and girls from Year 5 is obligatory. From age 9 onwards, the children are segregated according to their gender and have separate lessons, breaks, school clubs and trips. The policy of segregation is made clear to the parents of pupils and regulators.

Ofsted conducted an assessment of the School in 2016 and rated it 'inadequate' citing, among other concerns, the segregation of sexes within the School. Ofsted did not find that the standard of education offered to either sex was qualitatively different, but concluded that the segregation limited the pupils' social development and meant that they were ill-prepared for interaction with the opposite sex when they left school. On that basis, Ofsted contended that the segregation amounted to unlawful discrimination in breach of the Equality Act 2010.

The School issued judicial review proceedings, seeking an order that the inspection report be quashed. The High Court concluded that the practice of segregating pupils could be detrimental on the basis that there are educational benefits in interacting with the opposite sex. However it held that, as the treatment of both groups was the same, and had the same consequences, it could not be said that one group was being treated less favourably than the other and there was therefore no discrimination.

Court of Appeal Decision

HMCI appealed. The CA accepted that segregating pupils caused detriment and stated that the High Court had been wrong in its approach to the question of less favourable treatment. It concluded that the policy of segregation was discrimination against both sexes.

In reaching its decision the CA explained that the correct approach to determining direct discrimination is to look at each pupil as an individual, not as a group. Taking this approach, it is clear that a girl pupil who wished to interact with a boy pupil would be prevented from doing so because of her sex as, if she were a boy, she would be permitted to interact with a boy pupil. The same would apply if the sexes were reversed. The policy therefore amounted to direct sex discrimination against both sexes and was unlawful. The fact that all pupils, whether male or female, were subjected to the same detriment was irrelevant.

The CA rejected an argument that the girls suffered a greater detriment than their male equivalents as a result of the segregation, finding there was insufficient evidence to support this.

Points to Note

At first blush, the CA decision may seem counterintuitive: the 2 groups were treated the same, so how can that be discriminatory?

However it is important to remember that the Equality Act is there to ensure equal treatment. In this case the 2 sexes were both subjected to the same unequal treatment, so both were discriminated against. Two wrongs don't make a right.

In light of this Judgment, a policy which is applied consistently to different groups may amount to direct discrimination against individuals in one group if they are disadvantaged by the policy by reason of a protected characteristic. However, employers should be reassured that this type of situation is likely to arise very infrequently in an employment context, where segregation is rare, as it is only if groups are segregated by reason of a protected characteristic, such as sex, that this type of situation could occur.

Nevertheless, policy decisions can often potentially discriminate indirectly against certain groups. While direct discrimination cannot be justified, indirect discrimination can be justified as a proportionate means of achieving a legitimate aim. Employers should therefore reflect on their practices and ensure that any which have a disparate impact are objectively justifiable.

For further information or advice, please contact Lorna Scully in our Employment Law team on 0121 227 3719.