Rachel Barrett and Siân McKinley consider the recent Court of Appeal judgment on gender segregation, HM Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School, and the broader implications for discrimination law.
The Court of Appeal has held that complete segregation of girls and boys in a mixed-sex school is discriminatory on grounds of sex. In doing so, the Court of Appeal has overturned the decision of the High Court (discussed here by Rachel Barrett and Chris Milsom).
While this case concerns the education provisions of the Equality Act 2010 (EqA 2010), it is potentially relevant for wider equality law, including in the workplace.
At Al-Hijrah School (“the School”), boys and girls between ages 9 and 16 are completely segregated for all lessons, breaks, school clubs and trips. Following an inspection in June 2016, Ofsted rated the School as “inadequate” for a number of reasons, including the segregation of pupils. Ofsted considered that segregation had a negative impact on all pupils’ chances to develop confidence with peers of the other gender and breached the EqA 2010.
The School applied for judicial review of the Ofsted inspection report and was successful at first instance. However, this judgment was overturned by the Court of Appeal.
We understand that the School has not made any application for permission to appeal.
The first interesting point to note is the finding that the segregation imposed by the School amounts to a detriment. This was the conclusion by Jay J at first instance and it was not appealed by the School. All pupils were subjected to this detriment because they were denied the choice to seek the society of and interactions with the opposite sex and the educational benefits which might flow from the exercise of that choice.
Segregating a person from others on racial grounds is deemed to be less favourable treatment (EqA 2010, s 13(5)). There is no similar provision in respect of other protected characteristics. It is useful to have judicial confirmation that segregation on the basis of a protected characteristic other than race can be less favourable treatment, although it was explicitly noted there was no finding that gender segregation is inherently discriminatory in every case.
The second interesting point to note is the comparator chosen by the Court of Appeal in order to determine whether there was less favourable treatment.
At first instance, Ofsted lost because Jay J considered that there was no material difference in treatment between boys and girls. Both were denied the opportunity to interact with the opposite sex. Jay J concluded there was no less favourable treatment of either group when compared to each other. Jay J considered that the correct comparator was the group of the opposite sex.
The Court of Appeal thought this was the wrong way to analyse the facts. The correct comparator was (in the case of discrimination against a girl) a boy who can mix with other boys, and (in the case of discrimination against a boy) a girl who can mix with other girls. The Court of Appeal confirmed that, where a group is being discriminated against, individuals within that group are entitled to freedom from discrimination, looking at the matter from their own individual perspectives.
This may have implications for how we think about comparators and material circumstances in the future, particularly when comparators are applied to a group.
Thinking of examples of “separate but equal” treatment in the workplace, where male and female employees are subject to different but comparably restrictive dress requirements, there was previously considered no less favourable treatment on grounds of sex (Smith v Safeway plc  ICR 868, CA). Tribunals were directed to look at whether an employer’s rules, taken as a whole, resulted in women or men being treated less favourably.
The Court of Appeal was directed to Smith v Safeway on behalf of the School as authority for the proposition that different but equal treatment for reasons of sex cannot constitute unlawful discrimination unless there is evidence of less favourable treatment. The Court did not consider Smith to be of any assistance because “the social context in which [the facts] arose was so different”.
Nonetheless, those cases must now be viewed through the prism of the judgment of the Court of Appeal. The emphasis on assessing less favourable treatment from the perspective of the individual claimant would suggest that it is no longer permissible for the Tribunal to look at the employer’s rules as a whole.
Gender segregation within premises within the UK is unusual (as opposed to services provided solely to one sex or the other). One must be careful not to extrapolate the reasoning of the Court of Appeal regarding this specific set of facts to other cases. It will be rare to find another case in which the reason for the treatment is accepted by the respondent to be a protected characteristic, but there remains a dispute about whether there has been less favourable treatment. If the reason for the treatment is a protected characteristic, the finding of less favourable treatment will often follow as a matter of inevitability.
However, one possible implication is for the employers who use a defence of “unreasonableness” to claims of direct discrimination. Direct discrimination involves:
- Less favourable treatment; and
- Causation i.e. because of a protected characteristic.
An employer who treats all of his employees equally badly can argue that there is no “less” favourable treatment (merely unfavourable treatment).
This is an unattractive defence to run in the first place, but could be more difficult now given the Court of Appeal’s analysis. Because of the focus of the Court of Appeal on the perspective of an individual, any difference in treatment (even between different ways in which the employer acted unreasonably) will be closely scrutinised. It is rare that an employer will be able to show that it treated all employees equally badly in exactly the same way. However, an employer may no longer be able to rely on the fact that he, as a whole, treats all employees comparably badly.
It will still be open to the employer to provide evidence that the less favourable treatment of the employee was not “because of” the protected characteristic but for some other, non-discriminatory reason. This is the “reason why” part of the test. However, the “unreasonableness” defence is often used as an argument of last resort because the employer does not have any other evidence or explanation. In such cases, the different focus of the Court of Appeal, from a group perspective to an individual perspective, could result in a successful claim.
One final point to note is the dissenting judgment from Gloster LJ. While this does not form part of the judgment of the Court of Appeal, it is worth a read. One particularly interesting feature is her willingness to take judicial notice that women are denied career opportunities, simply because they are prevented from participating in male networking groups, both in a social and in an employment context. Judicial notice of the particular disadvantage caused by male networking groups in the workplace may make it easier for female claimants to bring indirect or direct discrimination complaints where women are excluded from male only networking, information or otherwise.
While it is becoming less frequent for women to be excluded by design from networking events, there may be occasions when women are less able or less likely to attend networking events, for example, when networking take place at sporting events or informally at the pub after work. Employers may wish to take this opportunity to review networking opportunities to ensure that these events are not just open to both genders but actually attended by both genders.
18 October 2017