The Court of Appeal case in HM Chief Inspector of Education, Children's Services and Skills v Interim Executive Board of Al-Hijrah School  IRLR 334 arose out of an Ofsted investigation into a mixed-sex voluntary-aided Islamic school which found that there was complete segregation of male and female pupils over age nine. Ofsted contended that this was direct sex discrimination but this was challenged by the school under an application for judicial review. Judicial review was granted by the High Court which found that segregation of male and female pupils was not discrimination within the meaning of the Equality Act 2010.
The Court of Appeal has now unanimously rejected that approach and allowed an appeal against that decision. It says that “separate but equal treatment may constitute unlawful discrimination, and it will do so…if such treatment is based on gender and is more detrimental than it would have been but for that gender.” In essence the Court of Appeal regarded the case as one of double discrimination stating: “An individual girl pupil cannot socialise and intermix with a boy pupil because, and only because, of her sex; and an individual boy pupil cannot socialise and intermix with a girl pupil because, and only because, of his sex. Each is, therefore, treated less favourably than would be the case if their sex was different.”