The Public Sector Equality Duty doesn’t get in the way of exclusion from schools

13th December 2023

This article covers the implications of the recent High Court decision in the case of TZA v A Secondary School, and the applicability of the Public Sector Equality Duty.

What is the Public Sector Equality Duty?

The Public Sector Equality Duty (the “Duty”) forms part of the Equality Act 2010. It requires those that exercise public functions, such as maintained schools and academies to have due regard to the need to:

  1. eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010 Act;
  2. advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and
  3. foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

This means that those exercising public functions must not discriminate against, harass, or victimise others when making decisions because of their: sex; race; disability; religion or belief; sexual orientation; pregnancy/maternity; or gender reassignment.

TZA v A Secondary School

In the recent case of TZA v A Secondary School [2023], the High Court considered whether it was necessary for an English maintained school to provide evidence to demonstrate that the Duty had been taken into account when making an exclusion decision.

A student (“S”), was a 15 year-old child with special educational needs and had Black Caribbean heritage. During mid-2021, the headteacher permanently excluded S following what was described as “wholly unacceptable behaviour”. S was accused of seriously physically assaulting multiple students. It was the headteacher’s view that allowing S to remain in the school would present a significant risk of harm to the wellbeing of others.

When the headteacher wrote to S’s parent (“M”) to notify them of the permanent exclusion, the headteacher did not specify that the Duty had been considered. M appealed against the decision. However, the school governors discipline committee (“GDC”) upheld the decision. M subsequently requested that an Independent Review Panel (“IRP”) (made up of independent members) be held to consider the GDC’s decision. The IRP determined that due to a number of procedural errors in connection with the GDC proceedings, the matter should be reconsidered by the GDC. As obliged, the governors reconsidered the decision, and again, decided to uphold the exclusion.

M then presented a request for the High Court to review the lawfulness of the decision reached by the school’s governing body via a process known as Judicial Review. Amongst other things, M claimed that the exclusion was unlawful as the school failed to provide written documentation that demonstrated that the headteacher had due regard to the Duty, and argued that S should be reinstated.

The court’s decision

The Court held that the exclusion was not unlawful solely because it was not supported by evidence to show that the Duty had been taken into account. The legal requirement of the Duty was simply that the decision-maker had due regard to the Duty and that this consideration preceded their decision. The judge determined that it was clear from the original GDC, the IRP, and the reconvened GDC, that the headteacher was well aware of S’s ethnicity and special educational needs and, therefore, had taken into account S’s protected characteristics. The judge remarked that the headteacher was recognised as an “experienced leader in a diverse urban secondary school”, and therefore the headteacher would have had all of the relevant considerations in mind even if the headteacher’s thought process had not been fully documented.

This case demonstrates that conscientious consideration of the Duty must be undertaken prior to an exclusion decision being made. Although there is no specific duty to record that consideration, doing so will assist a school or academy to explain the rationale for its decision-making and this might help prevent future challenges.

How can we help?

Our team of education lawyers have developed specialist expertise in advising on and defending exclusion decisions. We have assisted a number of maintained schools, academies, free schools and independent schools or local authorities across England and Wales on how to deal with challenges on appeal or by way of judicial review.

Please get in touch with either Trish D’Souza or Al Hussain if you require our assistance.

You may also find our article on what a Judicial Review is of interest. It can be accessed here.

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