What does (TTT) v Michaela Community Schools Trust mean for schools?

The pupil brought a judicial review claim challenging the decision to ban prayer rituals and two fixed- term exclusions she was subject to. 

She challenged the ban on three grounds: (i) that it is a breach of her right to freedom to manifest her religious beliefs, which is protected under Article 9 of the European Convention on Human Rights (“ECHR”) (ii) that it indirectly discriminates against Muslim pupils, in breach of the Equality Act 2010 (“the 2010 Act”) and (iii) that the school had failed to have “due regard” to the need to eliminate discrimination, advance equality of opportunity and to foster good relations between Muslims and non-Muslims, contrary to the public sector equality duty (“PSED”) under section 149 of the 2010 Act.

She challenged the two fixed-term exclusions on the basis that these were procedurally unfair because she was not given the opportunity to respond to the allegations against her before the Headmistress made the decisions to exclude her.
 

(i) Freedom to manifest religious beliefs 

The Court found that the pupil’s Article 9 rights had not been interfered with, finding that Article 9 protects “freedom” to manifest religious beliefs rather than conferring an absolute right to do so. In reaching this conclusion, the Court accepted the school’s arguments that the pupil knew that it was secular when she enrolled and that she may be subject to restrictions on her ability to manifest her religion and that she was free to choose another school or move schools. The Court also found that the ban was proportionate as it had legitimate aims which outweighed the adverse effects on the rights of Muslim pupils. 

(ii) Indirect discrimination against Muslim pupils

Whilst it was accepted that the prayer ritual ban was a provision, criterion or practice that put Muslim pupils, including the claimant, at a disadvantage compared to non-Muslim pupils, it was held to be a proportionate means of achieving legitimate aims. These were stated by the school to be (i) preserving the ethos, policies and practices of the school (ii) promoting pupils’ compliance with the school’s behaviour policy (iii) protecting the school from threats and abuse (iv) avoiding the logistical disruption and detriments to other school activities which would be caused by accommodating prayer rituals within the school building and (v) avoiding detriment to pupils’ education and to social cohesion within the school which would occur if they were permitted to opt out of the important period of socialising during the lunch break. The Judge agreed, stating “The disadvantage to Muslim pupils at the school caused by the [prayer ritual ban] is in my view outweighed by the aims which it seeks to promote in the interests of the school community as a whole, including Muslim pupils.”

(iii) Public Sector Equality Duty (PSED)

Even though there was no specific reference to the PSED in relevant briefings and meeting notes, the school was not found to have failed to have due regard to the PSED because the governing body had considered relevant issues in substance and in the context of the school. An argument put forward by the claimant that failure to comply with section 149 would mean that the school could not prove the proportionality of its decision was also rejected.

(iv) The two fixed-term exclusions

The claimant argued that the school had failed to follow the statutory guidance on suspensions and permanent exclusions because it had not sought her views before taking the decision to issue fixed- term exclusions to her on two occasions in connection with incidents connected with the ban. The Headmistress’ position was that asking for the pupil’s “account of these incidents before giving her these two fixed-term exclusions […] would have been wholly against the school’s ethos and practices”. This is not in line with the statutory guidance which requires a pupil’s views to be sought unless it would not be appropriate to. The pupil’s challenge on this ground was only successful in relation to the second fixed-term exclusion. The difference identified by the Judge was that the first decision to exclude was taken based on a teacher’s evidence, and, in light of the school’s ethos, the pupil’s evidence would not have changed the decision, whereas the second exclusion decision was based on evidence from other pupils.   

• Cases such as this are highly fact-specific, and the School is very unusual in terms of ethos, disciplinary approach and school site constraints, so the implications for schools generally from this case are fairly limited. It should also be noted that as this is a High Court decision it is amenable to appeal to the Court of Appeal.

• It should not be inferred from this case that schools can freely restrict pupils’ rights to manifest religious belief. Schools can impose policies and rules which could restrict the right to manifest a religious belief and/or put those with protected characteristics at a disadvantage, but only where these can be shown to be a proportionate means of achieving a legitimate aim, and this is a highly fact-specific test. Such decisions can put schools at risk of legal challenge, which, even when unsuccessful, place a significant burden on a school. Seeking legal advice before taking such decisions is highly recommended. 

• Schools should continue to follow the statutory guidance on exclusions Suspension and permanent exclusion from maintained schools, academies and pupil referral units in England, including pupil movement and continue to seek pupils’ views unless it would not be appropriate to do so before taking exclusion decisions. The School in this case has a very specific disciplinary ethos and approach to teacher authority, other schools should not assume that having a teacher’s evidence about an incident is sufficient grounds not to seek a pupil’s views.   

• The judgment gives helpful guidance to decision-makers about what having due regard to the PSED means in practice, for example making it clear that does not need to be specifically referenced in decision making records (though we would recommend it is as a matter of good practice), it is the substance, not the form of the discussion that leads to the decision that counts. 

• The judgment places weight on the ability of headteachers, staff and governors to take decisions “within their sphere of expertise” and in line with the decision-making power conferred upon them by Parliament about sensitive matters.