Ensuring Due Regard for the Public Sector Equality Duty in School Exclusion Decisions

Introduction

This commentary provides an in‐depth analysis of the Court of Appeal decision in Tza, R (On the Application Of) v A Secondary School (Rev1) ([2025] EWCA Civ 200). The case concerns a judicial review appeal relating to the permanent exclusion of a 15‐year-old pupil, referred to as TZB, from a secondary school. The pupil, who is of Black Caribbean heritage and has special educational needs (SEN), was permanently excluded following allegations of serious misconduct involving acts of physical violence.

The claim, brought by his mother (anonymised as “TZA”), primarily argued that the headteacher and the Governing Body’s disciplinary committee (the GDC) failed to properly discharge their duties under the Public Sector Equality Duty (“PSED”) as laid down in section 149 of the Equality Act 2010. In essence, the Claimant contended that there had been a lack of documented and substantive consideration of TZB’s protected characteristics – including his ethnicity and SEN – which would have influenced the decision-making process on exclusion. Equally, the Claimant argued that the reasons provided by the GDC in its reconsideration of the initial exclusion decision were inadequate.

In this case, the court had to consider the appropriate standard for applying the PSED in individual school exclusion decisions, as well as the requirements on the GDC when they are mandated to review a permanent exclusion decision.

Summary of the Judgment

The judgment by the Court of Appeal ultimately dismissed the Claimant’s appeal. The court held that there was no legal duty for the headteacher (or the school) to produce contemporaneous written records demonstrating explicit compliance with the PSED provided that due regard had in fact been paid to the duty. It was found that the headteacher’s evidence, as captured in the minutes of the Governing Body’s meeting, clearly indicated that she had taken into account the relevant factors prescribed by the Equality Act 2010.

Furthermore, the court acknowledged that the process of exclusion is inherently complex. The GDC is not a mere rubber-stamp body reviewing the headteacher’s decision for legality; rather, it forms an integral part of the decision-making process that considers not only the headteacher’s assessment but also all relevant safeguarding and support measures for the pupil.

In addressing the PSED challenge, the Judge reasoned that while the absence of an explicit, contemporaneous “Equality Impact Assessment” might appear problematic from a documentary perspective, the emphasis must remain on whether the decision maker had, in fact, taken into account the disproportionate exclusion rates affecting high-risk groups such as Black Caribbean pupils and those with SEN. The court also reviewed the alleged inadequacy of the reasons provided by the GDC, concluding that the reasons, when taken together with accompanying documents (including the minutes and the headteacher’s witness statement), were sufficient.

Analysis

Precedents Cited

Throughout the judgment, the court was careful to consider and refer to an array of precedents that illuminate the extent to which documentation and clear articulation of due regard is necessary when engaging with the PSED. For instance, the decision cites R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3156 (Admin) and comments by Lord Justice Aikens, noting that while explicit reference to considerations owed under the PSED is regarded as good practice, a statutory requirement for a contemporaneous record is not imposed. Additionally, other cases – such as R (a Parent) v Governing Body of XYZ School [2022] EWHC 1146 (Admin) and R (AT and BT) v London Borough of Barnet [2019] EWHC 3404 (Admin) – reinforce the view that school exclusion decisions are to be considered as part of a singular process, blending the headteacher’s role with that of the governing body.

The court’s reasoning shows that previous decisions have placed the focus on the substance rather than the formal documentation of the decision-making process. In effect, merely insisting on a granular, written record of every consideration (such as a formal “Equality Impact Assessment”) would risk over-legalising the process and could potentially disturb the practical realities of school administration.

Legal Reasoning

At the heart of the judgment is the principle that compliance with the PSED is a “due regard” requirement rather than one that imposes a strict formal duty to record each consideration in writing. The Judge emphasized that what matters is that the decision-maker – in this case, the headteacher – had regard for the Equality Act 2010 by considering both the pupil’s ethnicity and SEN. The minutes of the Governing Body’s meetings, combined with the headteacher’s evidence, established that such due regard was indeed paid.

The legal reasoning further distinguishes between assessing the substantive merits of an exclusion decision and the procedural requirements that underpin judicial review of such decisions. The court acknowledged that while the GDC should ideally set out clear and explicit reasons, there is no absolute requirement for addressing every minutiae of the IRP’s criticisms. Instead, what is critical is that the overall reasoning is “lawful, reasonable and procedurally fair” in light of the statutory guidance.

Moreover, the reasoning pointed out that the role of the GDC is not solely to correct any error potentially committed by the headteacher, but rather to independently consider whether the exclusion remains justifiable after weighing all evidence and representations. This dual-level assessment helps safeguard against both arbitrary decision-making and excessive formalism.

Impact on Future Cases and the Relevant Area of Law

The judgment is significant for several reasons. First, it clarifies that in school exclusion decisions the “due regard” requirement under the PSED does not impose a rigid formal duty to document every consideration explicitly. Instead, it underlines a more flexible, context-dependent standard that appreciates the expertise and holistic knowledge school administrators have regarding their pupils.

For future cases, this decision reinforces that challenges based solely on the absence of contemporaneous written evidence of a PSED assessment may not succeed if the decision-maker can demonstrate, by way of associated records and oral evidence, that appropriate considerations were indeed taken into account. Consequently, this may lead to a more nuanced judicial review process in which the substance of the decision-making process matters more than procedural perfection.

Additionally, by acknowledging that the role of the governing body includes the independent review and eventual finality of the exclusion decision—and not merely an endorsement of the headteacher’s initial determination—the judgment may influence how future challenges to exclusion decisions are framed, reducing the likelihood of appeals that seek to “cure” any alleged procedural irregularity solely by noting missing documentation.

Complex Concepts Simplified

Several legal concepts and terminologies in the judgment are worth simplifying:

Public Sector Equality Duty (PSED): Rather than requiring decision-makers to produce a detailed, written “checklist” of compliance, the PSED calls for a decision maker (or public authority) to keep in mind various factors such as eliminating discrimination and advancing equality when making decisions. The court is satisfied if the decision maker shows that they have genuinely considered relevant protected characteristics.
Due Regard: This means that while the process must consider protected characteristics (such as race and SEN), it is not required that each consideration be set out in writing as long as it shapes the overall decision. Its application is inherently context specific.
The Two-Fold Test: As mentioned in the Guidance, a decision to exclude a pupil permanently should be justified either by the occurrence of a "serious breach" of school policy or "persistent breaches" which cumulatively harm the school's environment. In TZB’s case, the headteacher primarily relied upon the “serious breach” of physical assaults while referencing the pupil’s previous record as reinforcement.
GDC’s Role: Rather than serving as a mere appellate body for the headteacher’s exclusion decision, the Governing Body’s disciplinary committee is tasked with independently reviewing the facts and ensuring that the decision is both legally sound and procedurally fair.

Conclusion

In summary, the Court of Appeal’s decision in Tza, R (On the Application Of) v A Secondary School (Rev1) establishes a significant precedent: while schools must indeed give due regard to the Public Sector Equality Duty when making exclusion decisions, the requirement is flexible and context specific rather than rigidly formalistic. The judgment reaffirms that evidence of proper consideration may be gleaned from meeting minutes and the headteacher’s oral testimony, and that a governing body’s decision, when based on a comprehensive review of all available evidence, meets the statutory requirements as long as it is “lawful, reasonable and procedurally fair.”

This comprehensive analysis not only clarifies the application of the PSED in the context of individual exclusion decisions but also reinforces the importance of balancing detailed procedural documentation with a pragmatic understanding of decision-making processes within schools.