Education Law Speed Read – 23/10/17
23rd October, 2017
This week we look at a recent case where the Court of Appeal found that a segregation policy was direct discrimination and we take an in depth look at the recent "managing staff experiencing mental ill health" guidance released by ACAS.
Segregation policy is direct discrimination
In the recent case of HMCI v The Interim Executive Board of Al-Hijrah School the Court of Appeal found that the segregation policy of an Islamic faith school was direct sex discrimination and overturned the decision of the High Court.
Al-Hiraj School is a voluntary aided faith school for boys and girls aged between 4 and 16 in Birmingham. The school ran a practice of separating boys and girls from Year 5 to Year 11 for religious reasons. Students had separate lessons, school trips, clubs and breaks.
The School had originally been placed in special measures by Ofsted in 2014 and despite the segregation policy being noted by Ofsted at the time, it did not object to the policy until 2016. Ofsted’s 2016 Inspection Report found that the school was inadequate; one such reason was related to the segregation policy’s impact on the ‘personal development, behaviour and welfare of the pupils’.
The School commenced judicial review proceedings, asking that the Ofsted Report be quashed. The High Court found that as the girls and boys were treated the same, there was no discrimination.
Ofsted appealed, arguing that the school’s segregation policy meant that there was a loss of opportunity for girls to choose to learn and socialise with boys (and vice versa) and there was a loss of opportunity for girls to socialise confidently with boys (and vice versa) and/or learn to socialise confidently in preparation for personal, education and work-related contexts on leaving the school.
The Court of Appeal agreed with Ofsted and found that the policy was unlawful sex discrimination. The fact that there was equal or mirror discrimination in this case did not mean that there could not be a finding of less favourable treatment. The High Court had erred by looking at the boys and girls as a group, rather than looking at the matter from the perspective of an individual pupil.
However, Ofsted’s argument that the segregation policy had a greater impact on females because (1) females were the minority power in society and (2) the policy implied that girls were inferior to boys, was dismissed by the Court.
Currently, it is thought that around 20 other faith schools (including Islamic, Jewish and Christian schools) have similar segregation policies in place. The Court of Appeal stated that these schools should be given time to ‘put their houses in order’ as they recognised that the Secretary of State and Ofsted should have identified the problem sooner and had essentially accepted (until the 2016 report) a state of affairs which were unlawful.
Managing mental health in the workplace
ACAS has released new guidance which aims to assist employers in managing mental health in the workplace.
This guidance comes as a new study published by the charity Business in the Community, showed that out of a survey of more than 3000 employees, of those that had disclosed their mental health issues to their employers, 15% had gone on to face disciplinary action, demotions and/or dismissals.
Further, only 11% of the people surveyed said that they felt able to disclose a mental illness to their line manager.
The new ACAS guidance places great emphasis on the role of managers in spotting and supporting employees with mental health issues. The guidance suggests that managers should be approachable, have one to one catch ups with staff and tailor their managerial approach to each individual.
The guidance recognises that although employers may be comfortable at dealing with their employees’ physical illnesses, employers often lack the confidence in dealing with mental illnesses. One of the greatest issues an employer faces is recognising when an employee is suffering from a mental illness. The new guidance highlights certain signs that employers should be alert to, including:
- A change in the individuals usual behaviour, mood or how they interact with others.
- Changes in their standard of work and their focus on tasks.
- An increase in their sickness absences and lateness.
If an employer has concerns about a member of staff suffering from mental illness they are encouraged to be proactive and arrange a meeting as soon as possible with the affected employee.
Of course, not all individuals may want to talk about their issues and should not feel pressured to do so. If this is the case, managers should continue to monitor the situation and seek guidance from HR and Occupational Health if their concerns continue.
Mental health conditions can often amount to a disability under the Equality Act 2010. Consequently, employers should put in place reasonable adjustments where possible, to ensure that an individual can continue to perform their job without being put at a disadvantage.
The new guidance states that reasonable adjustments could include managing the individual’s workload and increasing their entitlement to breaks. All adjustments should be discussed with the individual, recorded and be subject to regular reviews.
The guidance also gives useful advice on managing absences relating to mental illness including having an agreed plan for keeping in contact with the affected individual whilst they are on sick leave, agreeing how to communicate their leave to their fellow colleagues and encouraging a phased approach to their return.
Finally, the guidance recognises that even with reasonable adjustments, an employee’s conduct or performance may mean that disciplinary and capability actions may have to be taken. In these circumstances the employer should consider if they have considered all reasonable adjustments (for example changing the individual’s role) and as in all cases they should follow a fair process.
The ACAS guidance can be found by clicking here.
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.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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