Prevent referrals and discrimination under the Equality Act

Following a rare Equality Act challenge against a Prevent referral, a school has been found to have unlawfully discriminated against a Muslim pupil referred to the local authority under the Government’s counter-terrorism scheme.

The district judge ruled that the teacher making the referral did so in a manner which subjected the Claimant to direct discrimination because of his religion, contravening s13 Equality Act 2010. The Claimant received an injury to feelings award of £10,000 plus interest, won litigant-in-person costs and the Defendant was subject to a pro bono costs order.

Background

In 2021, the Claimant was one of multiple children involved in a playground incident leading to fixed-term exclusions for several students. However, school staff formed additional concerns about the Claimant’s behaviour. Teachers concluded that he had encouraged a classmate to lay down a paper note on the ground containing a divisive message, and that he had shouted words from an internet ‘meme’ which referenced Islamic terrorism.

On the same day, teaching staff decided to refer the Claimant to the safeguarding hub within the local authority with the capacity to make onward referrals to the Government’s Prevent scheme. A referral was made by a senior teacher, who marked it with the word ‘Prevent’.

The Court held that the language used to describe the incident in the referral was suffused with violent and religious overtones that went beyond the facts established by the school’s investigation. As a result, the teacher was found to have cumulatively glossed the incident with religiously loaded language.

The Court found that the language used in the referral was a powerful indicator that the teacher’s subconscious thought processes were influenced by his knowledge that the boy was a practising Muslim.

Applying the burden of proof provisions at s136 EqA 2010 and Igen Ltd v Wong [2005] IRLR 258, the judge held that the Trust was unable to provide cogent evidence that the school’s treatment of the Claimant was in no sense whatsoever related to his religion. This was largely owing to the school’s lack of notes and record-keeping from the time the decision to make the referral was reached.

The Court accepted the Claimant’s argument that a discriminator’s motivation is irrelevant. Even where a decision-maker believes themselves to be acting in the interests of the individual concerned, and even where the Court may feel ‘unease’ at reaching its conclusion, a court is bound to make a finding of direct discrimination if the causal link between less favourable treatment and protected characteristic is made out (see Amnesty International v Ahmed [2009] UKEAT/0447/08).

The Court also accepted the Claimant’s argument that this was not a case where the Claimant needed to show a comparator to succeed in his claim (see Page v NHS Trust Development Authority [2021] EWCA Civ 255). Because the language used in the referral was inherently religious in nature, the Judge did not consider that a comparator assisted in establishing the required causal link between the treatment complained of and the Claimant’s religion.

Lessons learned

This case highlights the fault line between the ‘Prevent’ duty and the rights of an individual not to face unlawful discrimination under the Equality Act.

A significant number of referrals made under the Prevent scheme are made in an education setting. Teachers across the country are trained in line with the scheme’s objective of early intervention. Official Prevent duty guidance states that “educators are often in a unique position, through interacting with learners on a regular basis, to be able to identify concerning behaviour changes that may indicate they are susceptible to radicalisation” including “certain divisive or intolerant narratives which can reasonably be linked to terrorism”.

All the while, s13 of the Equality Act prohibits schools from treating students less favourably on the grounds of race or religion. Prevent duty guidance explicitly states that schools and other authorities must comply with the Equality Act when carrying out the duty.

This ruling exposes a potential trap door for educators navigating their responsibilities under the Prevent duty; staff must take care that any concerns they form of possible radicalisation are not materially influenced by the mere fact of a student’s race or religion. The case demonstrates that while institutions must be free to act on genuine concerns, they will risk crossing into unlawful discrimination where their decision-making rests on stereotyping, discriminatory taint or subconscious bias.

This was a first instance ruling from the County Court with no binding authority. Nonetheless, schools aiming to strike a lawful balance between the Prevent duty and their obligations under the Equality Act can learn the following six lessons from this case:

1. The referral of a school student to Prevent may constitute ‘detrimental’ or ‘less favourable treatment’ under the Equality Act. The test for ‘detriment’ is broad in equality law, translating to anything which a reasonable person would consider was to their detriment or disadvantage.
2. A school may remain liable for how its teachers frame their concerns even where it lacks the power to refer to Prevent directly and must channel that concern through safeguarding teams and/or the local authority.
3. Even if the decision of a school to make a Prevent referral is lawful (non-discriminatory), the manner in which that referral is subsequently made may nonetheless be discriminatory. This can comprise the language used to describe the pupil’s conduct in the referral, the imagery invoked, and the overall impression conveyed by the referral.
4. Acting on concerns of possible radicalisation carries the risk of contravening discrimination law if those concerns are materially influenced by religious or racial stereotyping.
5. Poor record-keeping, note-taking and/or insufficient paper trails relating to a school’s decision to make a Prevent referral may deprive the school of the cogent, contemporaneous evidence needed to prove that the referral was untainted by religion or race. Poor record-keeping carries particular risk if a referred individual can show a prima facie case of discrimination in line with the burden of proof provisions at s136 EqA 2010.
6. The fact that teachers may decide to make a Prevent referral with the best interests of the community, or even the referred individual themselves, in mind will be irrelevant to the Court’s analysis of discrimination if the reason for that decision is race or religion.

Fred Holker at Cloisters Chambers represented the successful Claimant at trial.