E challenged the admissions policy of a school which admitted by preference children acknowledged to be Jewish by the Office of their Rabbi. His mother being Jewish by conversion in a progressive synagogue, E was excluded. The claimant suggested that the policy ‘elides the grounds of an act with its motive, whereas what the legislation is concerned with is not its motive but its causation. A religious motive will not excuse discrimination on racial grounds.’
Held: The policy was discriminatory. ‘So long as a maintained faith school is undersubscribed, it cannot use religious criteria to allocate places. But once it is oversubscribed, it can lawfully restrict entry to children whom, or whose parents, it regards as sharing the school’s faith. This is not by reason of an affirmative enactment, but because such schools are exempted from the prohibition of discrimination on grounds of religion or belief contained in Part 2 of the Equality Act 2006.’ The decision between Jewish and non-Jewish children could be made on religious but not racial grounds. The test applied judge the student according to whether she was regarded as jewish by the orthodox jewish faith. That was a racial characterisation, and not an assessment of the applicant’s religion: ‘M was refused admission to JFS because his mother, and therefore he, was not regarded as Jewish. The school has been perfectly open in giving this as the ground of non-admission. There are of course theological reasons why M is not regarded as Jewish, but they are not the ground of non-admission: they are the motive for adopting it.’
Applying Mandla, ‘(a) that Jews constitute a racial group defined principally by ethnic origin and additionally by conversion, and (b) that to discriminate against a person on the ground that he or someone else either is or is not Jewish is therefore to discriminate against him on racial grounds. The motive for the discrimination, whether benign or malign, theological or supremacist, makes it no less and no more unlawful. Nor does the factuality of the ground. If for theological reasons a fully subscribed Christian faith school refused to admit a child on the ground that, albeit practising Christians, the child’s family were of Jewish origin, it is hard to see what answer there could be to a claim for race discrimination.’
Sedley LJ, Smith LJ, Rimer LJ
[2009] EWCA Civ 626, Times 08-Jul-2009, [2009] PTSR 1442, [2009] ELR 407, [2009] ACD 69, [2009] 4 All ER 375
Bailii
Race Relations Act 1976, Equality Act 2006 50(1)(a)
England and Wales
Citing:
Appeal from – E v The Governing Body of JFS and Another Admn 3-Jul-2008
The court considered the impact of secular discrimination policy on admissions policies of religious schools.
Held: A school admissions policy which gave priority to children of their designated faith did not discriminate unlawfully either . .
Leave to appeal – E v The Governing Body of JFS and Another Admn 16-Jul-2008
Application for leave to appeal. . .
Cited – Zarczynska v Levy 1979
A white barmaid was dismissed for refusing to turn away black customers. She claimed in race discrimination.
Held: Treating people less favourably not because of their race but because of the race of others is also discrimination on grounds of . .
Cited – English v Thomas Sanderson Ltd CA 19-Dec-2008
The claimant appealed dismissal of his claim for harrassment and sex discrimination. Though heterosexual, he had been subject to persistent jokes that he was homosexual. The court first asked whether the alleged conduct was ‘on the grounds of sexual . .
Cited – James v Eastleigh Borough Council HL 14-Jun-1990
Result Decides Dscrimination not Motive
The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination.
Held: The 1975 Act directly discriminated between men and . .
Cited – Chief Constable of West Yorkshire Police v Khan HL 11-Oct-2001
The claimant was a police sergeant. After many years he had not been promoted. He began proceedings for race discrimination. Whilst those were in course, he applied for a post elsewhere. That force wrote to his own requesting a reference. In the . .
Cited – Swiggs and others v Nagarajan HL 15-Jul-1999
Bias may not be intentional
The applicant claimed that he had been denied appointment to a job with London Regional Transport because he had brought a number of previous race discrimination claims against it or associated companies. An industrial tribunal had upheld his claim . .
Cited – Seide v Gillette Industries Ltd 1980
The claimant had been moved to a different department to escape anti-Semitic harassment. He fell out (for non-racial reasons) with his colleagues in his new department and was disciplined.
Held: The fact that but for the earlier harassment he . .
Cited – Mandla (Sewa Singh) v Dowell Lee HL 24-Mar-1982
A private school had refused to admit the claimant, a sikh, because he would be unable to wear the school uniform. He claimed racial discrimination. The school denied that being a Sikh was a membership of a racial or ethnic group.
Held: Sikhs . .
Cited by:
Main CA Judgement – E, Regina (On the Application of) v Governing Body Of JFS and Another CA 10-Jul-2009
. .
At CA – E, Regina (On the Application of) v Governing Body of JFS and Another SC 14-Oct-2009
The claimant had successfully challenged the policy of the school as racially discriminatory. He now sought an ancillary order that the respondents should not be allowed to request their costs from the defendant’s appeal whatever the outcome, the . .
See also – E, Regina (on The Application of) v Governing Body of JFS and Another SC 16-Dec-2009
E complained that his exclusion from admission to the school had been racially discriminatory. The school applied an Orthodox Jewish religious test which did not count him as Jewish because of his family history.
Held: The school’s appeal . .
Lists of cited by and citing cases may be incomplete.
Education, Discrimination
Updated: 01 November 2021; Ref: scu.347197