High Court ruling on prayer ban in school

Insight

20.11.2024

In the spring this year, the High Court ruled that a secondary school’s ban on prayer rituals by pupils was lawful and dismissed the claimant’s argument on all key grounds.

Background of the case

The school (which is a secular secondary free school and was the named defendant in this case together with the London Borough of Brent, as an Interested Party) achieves excellent academic results (and ranks as one of the highest academically achieving schools in the country), and its success is largely accredited to its strict disciplinary approach. The school’s policy is to, “’aggressively’ promot[e] integration between pupils from different faiths, cultures and ethnic backgrounds whilst they are at school as well as minimising social distinctions between them” [para 2 Judgement].

In March 2023, the claimant, a pupil at the school, along with a number of other Muslim pupils, began to perform the Dhuhr prayer (one of Islam’s five daily prayers) during their lunchtime in the school playground. The claimant felt that where Dhuhr coincided with lunchtime, ie her “free” time, she should be able to perform the Dhuhr prayer then rather than seeking to make it up later under the Islamic principle of “Qada”.

The prayer in the playground would have drawn external attention from passersby, as the playground is visible from the street and up to 30 pupils were praying at one point. Separately, the school was concerned that the praying was leading to segregation between Muslim and non-Muslim pupils, and there were also concerns that less observant Muslim pupils were being pressured and bullied by more observant peers. Teachers intervened when pupils began to bring in prayer mats (which the school had designated as prohibited items). The judgement sets out that what can only be described as a significant campaign of harassment against the school and individual teachers, including calls, emails, and threats against the school, including a bomb threat, then followed. The school then made the decision to ban prayer ritual (the prayer ritual policy, PRP).

Judgement

The claimant argued that the School’s PRP:

Breached her right to manifest her religious beliefs under Article 9 of the European Convention on Human Rights. Article 9 is a qualified right and can be lawfully interfered with when it is:

1. prescribed by law; and
2. necessary and proportionate to pursue a legitimate aim, such as public safety, protection of public order, health, morals, or protection of the rights and freedoms of others (Article 9).

Was indirectly discriminatory against Muslim pupils, contrary to section 19 of the Equality Act 2010.
Was contrary to the public sector equality duty (which applies to state schools and not independent schools) and section 149 of the Equality Act 2010 which applies to both maintained and independent schools.

The judge, in this instance, found that there was no interference with the Claimant’s Article 9 rights because:

She voluntarily accepted the restrictions on her ability to manifest her religion by choosing to attend a secular school known to be strict. She was aware of and accepted the restrictions on her ability to pray during lesson time before the PRP was brought in. The secular nature of the school is explained to parents at open evenings.
She was able to move to a suitable school which would not restrict her ability to pray at lunchtime. The judge did not accept her argument that the consequences of moving schools, including a lower standard of education and disruption to her GCSEs, would constitute undue hardship and inconvenience.
As with lesson time, she could rely on Qada to make up for Dhuhr when it coincided with the allotted time, as the School’s PRP meant that prayer would be unavoidably missed at this time.

The judge found that in any event, the interference (the PRP) would be justified because:

There was a lack of space at the school and it would be impractical to create an indoor prayer space with staff supervision, and inappropriate to let Muslim pupils pray outside in the cold, wet and dirt.
Allowing Muslim pupils to go inside to pray during lunchtime would “emphasise their religious difference” [para 198 Judgement] from other pupils and undermine the school’s secularist ethos.
There was evidence that less observant Muslim pupils were being pressured by their peers into praying during lunchtime.

In relation to the Equality Act 2010 indirect discrimination argument, the judge found that:

The PRP subjected the claimant “to a detriment in that it prevented her from praying at a time when she could and should otherwise do so” [para 230 Judgement], and it did put Muslims at a particular disadvantage because they were more likely than non-Muslim pupils to wish to pray during the school day.
However, the PRP was a proportionate means of achieving a legitimate aim, essentially for the reasons covered above on the judgement for Article 9. The judge said “The disadvantage to Muslim pupils at the School caused by the PRP 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” [para 232 Judgement].

In relation to the Public Sector Equality Duty argument, the judge found that the Governing Body had due regard to the need to eliminate discrimination, advance equality of opportunity, and foster good relations between those who share a protected characteristic and those who do not (section 149(1)(a) - (c) Equality Act 2010). EJ Linden was satisfied that the Briefing Report and inquiries upon which the Governing Body relied were sufficient to show that they had due regard in relation to their duties under the public sector equality legislation.

Preventing Discrimination

The judgement above was based on the particular set of facts that applied to the school, which has a relatively unusual policy on its commitment to secular integration and the minimisation of difference. Schools should bear in mind that these cases tend to be fact specific and of course this case overall is a reminder of the importance of having clear policies and procedures, and of creating a safe and tolerant culture in school that helps prevents discrimination and harassment. As a reminder:
Direct discrimination occurs where a person is treated less favourably than others because of their (or a family member’s) actual or perceived protected characteristic (of which there are 9 characteristics under the Equality Act 2010): age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
Indirect discrimination occurs where a provision, criterion or practice is applied which disadvantages people with a protected characteristic and which cannot be justified as a proportionate means of achieving a legitimate aim. Previously, to claim indirect discrimination a claimant had to share the same protected characteristic as the group being placed at a disadvantage. Following the recent Equality Act 2010 (Amendment) Regulations, the Equality Act now permits someone without the same protected characteristic to make a claim for indirect discrimination if they can show that they suffered substantially the same disadvantage as the group.

Promotion of Equality, Diversity and Inclusion

The judge expressed that there are different views on how schools should choose to promote diversity and inclusion, and it was not his place to comment on the school’s method. This particular school’s approach to social cohesion is to minimise the differences between people, similar to a French style of secularism. Other schools may seek to promote equity, diversity and inclusion through the lens of multiculturalism rather than strict secularism and by celebrating the differences between their pupils and encouraging a culture of tolerance, openness and mutual respect in order to achieve pluralism. In theory, there is considerable freedom for institutions to develop policies that align with their values and ethos.

Schools should also be mindful that teachers are required to promote the spiritual, moral, social and cultural development of students and encouraged to teach British values, which hold freedom of belief and expression as being fundamental.

Schools will of course need to consider for themselves what equality, diversity and inclusion means in the context of their school, and some key overarching principles include:

Ensuring that everyone in the school community is equal, regardless of religion or belief, race, sexual orientation, sex, gender reassignment, disability, age or any other relevant protected characteristic.
Recognising that diversity is a strength and that differences should be recognised and valued.
Ensuring that the school’s values and culture reflect the importance of feeling safe.
Encouraging everyone to be themselves and reach their full potential.
Promoting a sense of belonging in the school.
Ensuring that prejudice and stereotyping are challenged.
Taking a “zero-tolerance” stance on all forms of discriminatory behaviour.
If a concern or disclosure is made that a child is being discriminated against, take this disclosure seriously and follow due process.

For further detail, please see our EDI Strategy toolkit which we produced for AGBIS on understanding equality, diversity and inclusion and how fairer cultures can be embedded into a school community.

Many thanks to Jessica Bennett, a trainee at the firm, for her help preparing this article.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.