Education Law Speed Read – 02/07/18
2nd July, 2018
This week we look at gender separation in mixed schools and a case in which the Employment Appeal Tribunal (EAT) considered whether an individual engaged on a "bank basis" with no guaranteed hours was an employee.
This week’s Speed Read focusses on the recent non-statutory guidance published by the Department for Education (DfE) concerning gender separation in mixed schools. The guidance was published in response to the Court of Appeal judgment in Ofsted v Al-Hijrah.
Al-Hijrah school had a policy of complete segregation between boys and girls over a certain age for all lessons, school clubs and trips. The schools also required boys and girls to use different entrances, different hallways and have different times for their lunch breaks in order to prevent them from socialising. The Court of Appeal held this to be discriminatory.
The DfE guidance notes that schools are under a duty to satisfy themselves that they are complying with legal requirements, having taken account of their specific circumstances.
Under equality legislation, schools are generally not permitted to separate pupils by reference to a ‘protected characteristic’ such as sex, race or faith. Any time that separation denies students an opportunity to interact socially or in an educational setting with pupils of the opposite sex is likely to be subjecting those students to a detriment as a result of their sex. This, therefore, will be unlawful discrimination, even if it is done with religious or other bona fide reasons in mind, and even if the quality of the education provided to both sexes is the same. There are some exceptions to this, which are detailed below.
Positive Action and single-sex activities
This is separation where the school reasonably thinks that:
- mixed-sex activities cause girls or boys to suffer a disadvantage connected to their sex;
- girls and boys have different needs from those of the opposite sex; or
- participation in an activity by either sex is disproportionately low.
If this is the case, schools may take action designed to enable or encourage girls or boys to overcome or minimise the disadvantages they face, to meet their sex-specific needs or to enable or encourage participation in an activity. Any action taken must be a proportionate means of achieving the school’s legitimate aim. One example cited in the guidance is the encouragement of girls into STEM subjects.
This would apply where the circumstances of the activity are such that physical strength, stamina or physique of the average girl or boy would put them at a disadvantage in competition with a member of the opposite sex. This does not mean that a school can prevent members of the opposite sex from participating in comparable sporting activities, just that in most cases schools may be able to justify single-sex teams. This is much less likely to be the case in younger children where the physical disadvantages pupils may face are much less prevalent.
Schools must also ensure that any single-sex sporting activity or team are provided with the same standard of resources, such as equipment and time, so as to not disadvantage members of the other sex.
Negligible and exceptional separation
This exception can only be used when the separation can be said to only have a negligible effect on the ability of pupils of both sexes to socialise or learn from and with one another. This should be considered on a case-by-case basis and schools should ensure they regularly evaluate the effect of the separation on pupils of either sex.
Schools should be careful to assess the potential effect of any proposed segregation and determine whether it is permitted against one of the above exceptions. In any event, any segregation must be proportionate to any legitimate aim that the school is trying to pursue. If this is not the case, the segregation is likely to be unlawful and discriminatory.
Hafal Ltd v Lane-Angell
In Hafal Ltd v Lane-Angell the EAT considered the issue of mutuality of obligation for casual staff engaged under an umbrella contract.
Hafal Ltd, a charity, engaged Miss Lane-Angell, as an Appropriate Adult (AA) attending police stations on a ‘bank basis’ with no guaranteed hours of work, from March 2013 to January 2016 – such an arrangement is often referred to as an umbrella contract.
Hafal Ltd introduced a requirement in May 2015 that AAs must be available for at least 10 shifts in a month, and three failures to respond to call-out requests would lead to removal of that AA from the rota.
In January, after failing to respond to call-out requests, Miss Lane-Angell was removed from the rota and informed by Hafal Ltd that she would not be offered more work. Miss Lane-Angell brought a claim of unfair dismissal on the grounds that she was an employee.
The Employment Tribunal (ET) found for Miss Lane-Angell, holding that she was an employee pursuant to the umbrella contract under which she was engaged by Hafal Ltd for a period of over two years. This was regardless of the fact that Miss Lane-Angell did not work continuously over the whole period.
Employment Appeal Tribunal
The EAT found that the ET had failed to take into account the terms of the letter of engagement between Hafal Ltd and Miss Lane-Angell, which did not require Miss Lane-Angell to offer her availability to work. The ET was also mistaken in considering the amended terms of engagement, which were brought into force in May 2015, as applying across the entire term of Miss Lane-Angell’s engagement when holding that she had been an employee.
The EAT therefore held that Miss Lane-Angell was not an employee of Hafal Ltd, on the basis that there were express contractual terms negating any obligation to offer any minimum quantity of work, or for Miss Lane-Angell to make herself available. In any event, even if she had been held to be an employee once the amended terms of engagement were brought into force, she would not have been employed during the requisite period and so was not eligible to pursue a claim of unfair dismissal.
This case is a reminder that the Tribunal should first consider any express contractual terms that have been agreed between the parties, to assess whether the commercial imperatives could, over time, crystallise into legal obligations. It is therefore important that employers’ terms are clear and actually bear resemblance to what happens in practice.
If you have any queries on the above and how it will affect you, please do not hesitate to contact a member of our education team.