Naeem v The Secretary of State For Justice  UKEAT/215/13/RN
On the 15th January 2014 the Employment Appeal Tribunal (“EAT”) handed down judgment in Naeem v The Secretary of State For Justice  UKEAT/215/13/RN.
The case concerned a Muslim Prison Chaplain who made a claim of indirect discrimination against his employer. The case principally concerned whether the Respondent’s “inherently complex” pay scales could be said to indirectly discriminate against the Muslim Chaplin.
The relevant background is as follows. Prior to 2002, the Respondent employed Christian prison chaplains only in the Prison Service. The pay scale for prison chaplains mainly reflects length of service. The Claimant/Appellant is a Muslim prison chaplain. He started his chaplaincy in October 2004 and had “permanent employment since 25 October 2004”. He brought a claim for indirect discrimination on grounds of race and/or religion or belief. He made no claim of direct discrimination.
The Claimant/Appellant accepted that a Christian chaplain who had joined at the same time in 2004 would have received the same pay and increments in pay as he (subject to an appraisal system). The indirect discrimination complaint was that longer serving chaplains who were white and Christian were more likely to be at the top of pay band 1 because they had been able to join the Prison Chaplaincy Service before 2002.
The relevant law in relation to indirect discrimination is found in section 19 of the Equality Act 2010, :
“(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if –
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.
(3) The relevant protected characteristics are –
marriage and civil partnership;
religion or belief;
The Claimant was unsuccessful in his original Employment Tribunal claim. The ET found that there had been indirect discrimination but determined that ‘justification’ had been made out.
The Claimant appealed the finding of justification; the Respondent cross-appealed the finding of the ET to include the pre-2002 chaplains in the pool of comparators.
In relation to the pool of comparators the Respondent argued that the pool assembled by the Tribunal, of all chaplains irrespective of date of service as permanent employees, did not enable a ‘like for like’ comparison. In other words, there was a “material difference”, for the purposes of the section 23 of the Equality Act 2010, between those employed pre- and post- 2002. The EAT allowed the cross-appeal.
The EAT noted that “the Tribunal [first instance] should themselves have seized and addressed the obvious proposition that there were manifest alternative ways in which the employers could have continued to apply the PCP in question but without disadvantage to the Claimant.”
The Appellant’s appeal would therefore have been successful (and remitted back to the first instance Tribunal) but for the Respondent’s successful cross appeal.
A note about justification:
In cases of indirect discrimination a defence of justification may be available. This is found in section 19(2)(d) of the Equality Act 2010 (quoted above). The Respondent must show that the provision, criterion or practice (PCP) was a proportionate means of achieving a legitimate aim. What counts as a ‘legitimate aim’ is a question of fact for the Tribunal.
If you are an employer with any queries regarding employment law and how it affects you, please contact Alice Lane.