Guidance

Equality and diversity impact assessment: separation by sex guidance

Updated 31 August 2023

Applies to England

Introduction

This page sets out Ofsted’s consideration of how the guidance on ‘Separation by sex: implications for inspections of mixed-sex/co-educational schools’ will fulfil the requirements of the Equality Act 2010, including the public sector equality duty (PSED) set out in section 149 of the Equality Act 2010.

The PSED requires Ofsted to have due regard to the need to:

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

The main PSED consideration for the ‘Separation by sex’ guidance is the potential for unlawful discrimination in relation to our inspection of schools. Those most likely to be impacted share the protected characteristic of sex. There may also be an adverse impact on those who shared the protected characteristics of race and religion or belief. We believe that the guidance will have a positive impact on those who share the protected characteristic of sex and no disproportionate negative impact on those who share the protected characteristics of race and religion/belief. We considered appropriately the need to advance equality when preparing the guidance.

Brief outline of guidance

We have revised our guidance for inspectors on inspecting mixed sex/co-educational schools. We have ensured that the revised guidance reflects accurately the Department for Education (DfE)’s non-statutory guidance ‘Gender separation in mixed schools’.

The revised guidance clarifies that if a school separates pupils for lessons and/or social times because they share the protected characteristic of sex, this may constitute unlawful discrimination. The guidance sets out the basis on which inspectors may reach a finding of unlawful discrimination in those circumstances.

If available evidence indicates that a school is directly or indirectly discriminating under the Equality Act 2010, this will have a negative impact on the leadership and management judgement. As a result, that grade will not normally be better than inadequate.

Our guidance also clarifies that if a school is discriminating against pupils by sex unlawfully, this may also negatively affect the personal development judgement. Inspectors may identify other relevant issues during inspection, for example, stereotypical language used about the sexes. Any judgement on personal development will always depend on the overall quality of the school’s provision for personal development and the severity of the impact of the unlawful discrimination (or other related issues) on pupils.

Using a 5-step approach within the guidance, inspectors must consider all the relevant circumstances. This includes the nature and scale of any unlawful discrimination and the steps taken by leaders to determine whether the practice is lawful and/or to remedy any unlawfulness. A graded inspection judgement of requires improvement is likely to be the best fit for leadership and management if:

• there is evidence that the unlawful separation has a limited negative impact on pupils; for example, if it happens only in a very small proportion of lessons
• the school can provide evidence of its genuine and imminent plans to end the discrimination and can satisfy inspectors that any unlawful discrimination is continuing for reasons beyond their control, such as due to the COVID-19 (coronavirus) pandemic or other external circumstances

If school leaders indicate to inspectors that they intend to continue with the unlawful practice, or they fail to provide robust and current evidence of their plans to correct it, the leadership and management judgement will normally be inadequate.

Using the revised guidance, inspectors are better able to exercise their professional judgement on the evidence available to conclude whether a school’s practice is unlawful and whether the leadership and management judgement should be inadequate or requires improvement.

The independent school standards (ISS) expressly require independent schools to not discriminate against pupils contrary to paragraph 3(j) in Part 6 of the 2010 Equality Act. However, in line with the the DfE’s guidance on the ISS, our guidance sets out that inspectors will not automatically judge the overall effectiveness of a non-association independent mixed school that fails standard 3(j) as inadequate. Under the education inspection framework (EIF), non-compliance with the standards normally means a school will not receive a leadership and management better than requires improvement.

The guidance makes clear that inspectors will consider the application of relevant statutory exemptions to schools’ practice.

We carried out an equality and diversity impact assessment on our EIF. This equality and diversity impact assessment does not seek to reconsider the content of those assessments, but is limited to an assessment of the impact of the revisions made to our guidance on implications for inspection of mixed sex/co-educational schools.

Evidence and analysis

In line with our section 149 duty, we have given due regard to how the revisions to the guidance could impact individuals or groups who share one or more of the protected characteristics. We also considered how, if at all, the revisions would satisfy the 3 parts of the PSED.

We considered all the protected characteristics and identified that the following 3 are of particular relevance to the guidance:

• race
• religion or belief
• sex

Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act

Potential negative impact

We have taken steps to reduce the risk of direct or indirect discrimination to those who share the protected characteristics of race and religion/belief as a result of the revised guidance. We consider that if any unequal treatment arises as a result of the guidance, it is proportionate and is justified by the positive impact on those who share the protected characteristic of sex.

Indirect discrimination can occur when a policy disadvantages people who share a protected characteristic compared with people who do not share a protected characteristic.

We considered the impact on those who share the protected characteristic of race and religion/belief. However, any negative impact is justified because the guidance is in line with the legal duties placed on all schools under the Equality Act 2010 and because of the positive impact of the policy on those who share the protected characteristic of sex.

Potential positive impacts

The guidance emphasises the importance of ensuring that pupils do not face less favourable treatment or suffer a detriment due to their sex and therefore encourages schools to avoid unlawful practice.

By considering the nature and extent of any separation, as well as determining if there is less favourable treatment or a detriment to pupils as a result (aside from any positive exemptions), we will ensure that all pupils are supported and protected.

Advance equality of opportunity between people who share a particular protected characteristic and people who do not share it

We have considered the protected characteristics in relation to the guidance. There is a potential impact on those who share the protected characteristics of race and religion or belief and cite one or more of these characteristics as a reason for separation by sex. These issues are complex and often unique to an individual inspection. Our guidance does not aim to provide definitive information, but directs inspectors to seek appropriate advice.

We consider no negative impact likely in relation to the other protected characteristics. We believe that the potential negative impact outlined in the previous paragraph is justified because the guidance is in line with the Equality Act 2010 and has a positive impact on those who share the protected characteristic of sex.

Our policy positions that we have set out in our guidance concerning the leadership and management judgement and compliance with the ISS, and the section concerning the personal development judgement, mean that inspectors will use the same approach in reaching judgements for all schools that separate pupils by sex. Our view is that this will ensure a fair and equal approach to the inspection of these schools.

Inspectors will expect all schools to comply with the Equality Act 2010 to ensure that no pupils face less favourable treatment or a detriment due to their sex. This will promote the equality of opportunity for all pupils.

Foster good relations between people who share a particular protected characteristic and people who do not share it

We have considered the identified protected characteristics of race, religion or belief, and sex in relation to the guidance. We do not consider any impact likely in relation to the other protected characteristics.

The guidance aims to ensure that there will be consistency in our judgements of those schools that separate pupils by sex in any form or proportion. The position set out in the guidance is likely to be welcomed by faith schools because it makes our expectations on inspection clear. It should enhance trust between Ofsted and those who are of a particular ethnic background and/or who hold particular religious beliefs.

For any school, state-funded or independent, to be judged good or better for personal development, it should demonstrate that no forms of discrimination are tolerated and that pupils show respect for those who share the protected characteristics as defined in the Equality Act 2010.

An intention of the EIF, and the personal development judgement in particular, is to encourage the fostering of good relations between all learners.

Decision-making

There are minor negative implications for some groups who share protected characteristics in these proposals. We have considered these and put appropriate mitigations in place. We believe any remaining negative impact is justified. Therefore, the decision is to proceed with the roll-out of guidance to inspectors as planned.

Monitoring and evaluation

We routinely consider whether our guidance pages require revision throughout each academic year. Many documents are revised and re-published just once a year to reduce the potential burden on schools. In conjunction with all other guidance material, we will review the guidance on implications for inspecting mixed sex/co-educational schools at least annually.

We will keep this equality and diversity impact assessment under review as the guidance is implemented on inspection. We will review it again if/when there are revisions to the inspector guidance. The reviews will assess whether the guidance remains consistent with our obligations under the PSED.