The Supreme Court has held, in the case of R v Governing Body of JFS, that the school admissions policy of a Jewish faith school, JFS, fell foul of the Race Relations Act 1976, as it was directly discriminatory on the grounds of ethnic origin.
JFS's admissions policy prioritised applications from children who were recognised by the Office of the Chief Rabbi (OCR) as Jewish under the Orthodox test of matrilineal descent. M was refused admission to the school because, although his mother had converted to Judaism, she had not done so under the recognised Orthodox procedure. M was, therefore, not considered to be Jewish by the OCR.
Faith schools are generally exempt from the prohibition on religious discrimination, as their purpose is to educate children in the religious beliefs of their parents. However, no school is permitted to adopt an admissions policy that discriminates on racial grounds. The difficulty in this case lay in distinguishing between religious status and racial/ethnic status, as a woman who converts to Judaism acquires ethnic as well as religious Jewish status, according to Jewish law.
The Supreme Court found by a 5:4 majority that the test applied by JFS's policy was a test of ethnic origin and therefore amounted to direct race discrimination. Direct discrimination cannot be justified under UK law and the motive behind the decision is irrelevant. The court emphasised that nothing in its judgment should be read as criticism of JFS on moral grounds or as implying that its policy was "racist" in the pejorative sense.
Impact on employers
- The Supreme Court's decision confirms that if race or ethnic origin (or any other protected ground) is one of the reasons for a decision or action, it will amount to direct discrimination. The motives of the discriminator, even if they are non-discriminatory, are irrelevant (see, for example, the decision of the EAT in the Amnesty International case earlier this year.
- Other faith schools are unlikely to discriminate directly on grounds of race against applicants who do not satisfy their criteria, as they do not adopt criteria based on descent which are by their very nature linked to ethnic or racial origin.
- This difficult case has reignited the debate on whether UK law on direct discrimination should be amended so that a person's motives for their actions can be taken into account. In other jurisdictions it is possible to justify direct discrimination and several of the members of the Supreme Court suggested in this case that Parliament should legislate to increase the extent to which race discrimination can be a justifiable act.
- Faith schools may be open to allegations that their admission policies indirectly discriminate against applicants outside the faith in question. The adoption of the criteria would then have to be objectively justified.