Employment Flash - 18th December 2009

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Direct discrimination by a faith secondary school in its admissions policy; admissions policy based on bona fide religious principle...

R (on the application of E) v Governing Body of JFS and others [2009] UKSC 15

A 9 judge Supreme Court was assembled to hear this appeal and produced 91 pages of judgment. The Court split 5-4 on ths issue of direct discrimination.

M's father is Jewish; his Italian mother is a convert from catholicism, who converted prior to M's birth. JFS is a faith based school who comes under the religious aegis of the Office of the Chief Rabbi ("OCR"). Its admissions policy is in part based on religious principle as enunciated through the Chief Rabbi but being of ancient origin. That principle is that you are Jewish if the maternal line is Jewish or if the maternal line has converted to Judaism (though the conversion principle would also apply in the unlikely event that a child went through the conversion process themselves). Although M's mother had converted she had not converted under the supervision of orthodox judaism and therefore her conversion was not recognised by the OCR and therefore M was not Jewish for the purposes of admission to JFS.

Two groups were identified: the Mandla group (those who are covered by the criteria in Lord Fraser's speech); those of matrilineal descent. The two group largely overlap, but there will be some who have matrilineal descent who are not part of the Mandla group as they do not fulfill the criteria (particularly being conscious of a shared history and a cultural tradition of the group's own).

In short the majority viewpoint on direct discrimination was: a person who discriminates on the ground of race, as defined by the Act, cannot pray in aid the fact that the ground of discrimination is one mandated by his religion (motive being irrelevant); the matrilineal test is a test of ethnic origin; the policy of the RRA is to treat people as individuals and not to assume them to be like other members of a group (treating someone less favourably because their mother isn't although their father is, is to treat them as members of a group unrelated to their individual attributes).

In short the minority viewpoint was: the determination by JFS to reject M was made not on the basis of ethnicity or origins but on the basis of non-orthodox conversion (a religious ground not a racial one) and therefore the religious status as a Jew was not recognised by the OCR; the RRA does not appear to outlaw discrimination in favour of the self-same racial group as are said to be discriminated against.

Lord Clarke (5th of the majority) observed that the ethnic element was essential to the religious element. Lord Mance (3rd of the majority) and Lord Clarke espoused the view that direct discrimination can be discerned in one of two ways: (1) whatever the motive and whatever the state of mind of the alleged discriminator, the decision or action was taken on a ground that was inherently racial; (2) the decision or action was taken on a ground that was subjectively racial.

There was a major conflict of views on Lord Nicholl's speech in Nagarajan v LRT [2000] 1 AC 501. Lord Hope (1st of the minority) was able to draw from one passage in Lord Nicholl's speech ("Many people are unable...less favourably on racial grounds", 512...) the proposition: if, after careful and thorough investigation, the ET were to conclude that the employer's actions were not racially motivated - that race was not the reason why he acted as he did - it would be entitled to draw the inference that the complainant was not treated less favourably on racial grounds (para 194); Lord Clarke disagreed, such an inference was impermissible for the reasons to be found in R v Birmingham County Council ex p EOC [1989] AC 1155 (school places for girls and boys) and James v Eastleigh BC [1990] 2 AC 751 (free entry to swimming pools for those of pensionable age). The difference of view on Nagarajan is required reading.

As direct discrimination was found not all of the court addressed the issue of indirect discrimination. Of the majority Lord Mance did and found there was indirect discrimination; Lady Hale, Lords Kerr and Clarke agreed (Lord Phillips stayed aloof). Lords Hope and Walker found indirect discrimination; Lords Rodger and Brown did not. A small bouquet was tossed Mummery LJ's way by Lord Hope for R(Elias) v Sec State for Defence [2006] 1 WLR 3213 (paras 131-133 of MummeryLJ's judgment) and a rather larger one by Lord Walker (paras 60 - 123, as well as 128 - 133 of Mummery LJ's judgment; required reading on direct and indirect discrimination).

Employment Team