Held, claim dismissed. (1) It would clearly have been helpful had there been contemporaneous or prior documentary evidence of the head teacher’s decision-making process, and had the head teacher rehearsed her consideration of the public sector equality duty explicitly in her letter communicating the exclusion decision. However, there was nothing in the Education Act 2002, the Equality Act 2010, the School Discipline (Pupil Exclusions) (England) Regulations 2012, or indeed in any of the authorities that imposed a specific requirement for documentary evidence of due consideration of the public sector equality duty (whenever created), or that required specific reference to be made to consideration of that duty in the reasons given for the decision to exclude. The legal requirement was simply that “due regard” was in fact paid to the public sector equality duty by the decision-maker before the decision-maker’s conclusion of the decision, since otherwise it would amount to justification for the decision rather than the reasons for it. Whether or not the head teacher had had “due regard” to the public sector equality duty before concluding the decision to exclude was a question of fact to be determined according to the evidence (whenever created, and in whatever form) (paras 44, 45, 48).

(2) While the authorities relating to exercise of the public sector equality duty rightly counselled caution in relation to evidence given after the event about how a decision-maker reached their decision, that was not to say that it would be wrong in all circumstances to place weight on such evidence. The governing body had to assess the evidence before it and decide, in the light of the evidence as a whole, what evidence it could rely upon and what it could not. A school governing body carrying out its role of considering whether to reinstate a permanently excluded pupil was not in the same position as a court reviewing a public authority’s decision. Members of a governors’ disciplinary committee could be expected to have considerable experience of a head teacher through their interactions as governors and that experience was likely to put members of the governing body in an excellent position to form a view of the head teacher’s credibility and to assess the reliability of their evidence. In the present case it was clear that the governing body had accepted the head teacher’s evidence about the factors she considered when reaching the exclusion decision, and that her consideration of the public sector equality duty occurred before, and not after, conclusion of the exclusion decision, findings which, in the circumstances, were by no means unreasonable (paras 54–57)

(3) It was clear from the authorities that what amounted to “due regard” was very much context dependent. What was required of the head teacher in the circumstances of the present case was simply to ensure that she brought into her consideration of all relevant factors in the decision-making process the matters which were, as an experienced leader in a diverse urban secondary school, already within her knowledge in relation to the claimant’s protected characteristics and the disadvantage experienced by those sharing those characteristics. In the circumstances, the governing body had been entitled to find that the head teacher had complied with her duties under the 2010 Act. In the circumstances it was neither irrational nor Wednesbury unreasonable for the head teacher to decline to undertake further inquiry to seek out the kind of research that the claimant put in evidence, so it was not unlawful for her to do so. The governing body had not, therefore, been bound to reinstate the claimant on the grounds of unlawfulness in the making of the exclusion decision in that regard (paras 59, 65, 66, 68).

(4) Both in the context of its initial consideration and the reconsideration decision the governing body had understood the nature of its role, which was not just to review the lawfulness of the exclusion decision, but also, factoring in the public sector equality duty, to carry out its own consideration of all the issues, so as to determine whether or not the claimant ought to be reinstated. Accordingly, it could not be said that the governing body had misunderstood the public sector equality duty or its breadth (paras 70, 76–78).

(5) There was no obligation on the governing body to rehearse in its reasons for the reconsideration decision what it had said before in relation to the decision not to reinstate or to deal with every point raised before it. It had only to give adequate reasons for its decision so that the claimant and his mother could understand why the decision went against them, and identify any potential errors in the decision, or the reaching of the decision, which they might wish to challenge. The public sector equality duty was intended to ensure that consideration of important equality considerations was “baked in” to the decision-making of public authorities, but it was a duty of process, rather than outcome. As long as the decision-maker had “due regard” to the duty, it did not demand any particular result. In that context, “due regard” meant the regard that was appropriate in all the circumstances including, on the one hand, the importance of the areas of life of the members of the disadvantaged racial group that were affected by the inequality of opportunity and the extent of the inequality, and on the other hand, such countervailing factors as were relevant to the function which the decision-maker was performing. The public authority decision-maker had to be alive to the equality implications of a decision when putting them in the balance, and to recognise the desirability of achieving them, but it was up to him to decide what weight they should be given. In the present case, while the “countervailing factors” the governing body had to consider were substantial, it had not resiled from any of those findings on its reconsideration of the refusal to reinstate. It was entitled to give those countervailing factors weight in the balancing exercise it had to perform and in all the circumstances, it had been entitled to come to the conclusion that the balance favoured permanent exclusion. That was a matter for the governing body, and the High Court ought not to seek to substitute its own balancing exercise. In those circumstances, the absence of any further explanation of precisely how the balancing exercise had been performed did not render its reasons inadequate (paras 84, 87, 97, 99, 100–104).