The respondent, a voluntary faith school for girls and boys aged between 4 and 16, believed that separation of the sexes was obligatory based on the school’s Islamic ethos.

In a June 2016 an Ofsted Inspection Report assessed the school as “inadequate” in “effectiveness of leadership and management”. A factor in this assessment was the policy pertaining to the segregation of pupils. The regulator noted that the segregation limited social development and the degree to which students were prepared for interaction with the opposite sex upon leaving school. To that extent Ofsted considered that students suffered educationally from the segregation.

Ofsted concluded that this practice constituted unlawful discrimination contrary to the GB Equality Act 2010. The school issued proceedings for judicial review seeking an order that the Inspection Report be quashed. The High Court allowed the School’s claim and noted that the treatment of both boys and girls was of equivalent nature with equivalent consequences and there was therefore no discrimination.

The Court of Appeal has allowed Ofsted’s appeal against that High Court ruling and rejected the school’s argument that separate but equal treatment by reason of gender cannot be unlawful discrimination, even if it is detrimental, if both sexes suffer the same detriment. The Court of Appeal held that discrimination legislation should be given a wide and purposive interpretation rather than a narrow one.

Practical Lessons

The Court of Appeal noted that it was not the mere fact of segregation which gave rise to discrimination but rather the impact of the segregation on the quality of education which the pupils would receive but for their respective sex. Segregation by race, for example, would quite obviously amount to discrimination in of itself.

What is particularly interesting is that the Court of Appeal found the HC’s approach to the question of whether there had been less favourable treatment by reason of sex by looking at each sex as a group to be erroneous. Instead, the focus should be on each pupil who is entitled to freedom from direct discrimination. This analogy could is easily applied in employment law also and the Northern Ireland Court of Appeal has previously affirmed this in Smyth v Croft Inns Ltd [1996] IRLR 84. Separate but equal treatment of two employees may constitute unlawful discrimination if such treatment is based, for example, on religion and both employees suffer the same detriment.
http://www.bailii.org/ew/cases/EWCA/Civ/2017/1426.html