R (on the application of E) v The Governing Body of JFS & Others [2009] UKSC 15

An appeal heard at the end of the Supreme Court’s first month attracted considerable media attention. A procedural hearing in this case took place on 1 October 2009, making it the first hearing of the UKSC. E challenged the refusal of a Jewish faith school, JFS, to admit his son, M, as a result of an oversubscription policy that gave preference to children recognised as Jewish by the Office of the Chief Rabbi. Such children were either descended in the matrilineal line from a Jewish woman or had undertaken a course of Orthodox conversion. M’s mother was neither Jewish by birth or by Orthodox conversion. E and M were however practising Jews and M’s mother had undertaken a non-Orthodox conversion to Judaism. E claimed that the admissions policy of JFS discriminated against M directly or indirectly on the grounds of his ethnic origins contrary to section 1 of the Race Relations Act 1976. Sitting as a nine judge court, the Supreme Court (by a majority of five to four) agreed with the Court of Appeal that JFS had directly discriminated against M. It held that if, as here, a person’s ethnic origins were the reason for the decision made, then the motive for the discrimination was irrelevant. The fact that the rule adopted by the school was of a religious character could not obscure or alter the fact that the son had been discriminated against on ethnic grounds. The option of undergoing conversion itself constituted a significant and onerous burden not required of those born with the requisite ethnic origins.