The EAT has held that a Muslim prison chaplain was not indirectly discriminated against on grounds of religion or race by a service related pay scale.   The Prison Service had only started employing Muslim chaplains in 2002, which meant that none of the Muslim chaplains would have reached the top of the payscale.  Christian chaplains employed before 2002 were in materially different circumstances and should be excluded from the pool.

Background

The Equality Act 2010 ("Equality Act") provides that indirect discrimination occurs where:

  • An employer applies to an employee, a provision, criterion or practice ("PCP"),
  • which puts or would put persons of the same religion or belief /race as the employee at a particular disadvantage when compared with other persons,
  • which puts the employee at a particular disadvantage, and
  • which the employer cannot show to be a proportionate means of achieving a legitimate aim ("proportionality" test).

In deciding whether employees of a particular race / religion or belief are put at a particular disadvantage by a PCP, the Tribunal will consider the impact of the PCP on a pool of employees.  For the purposes of the comparison, there must be no material differences between the circumstances of all the employees in the pool.

Naeem v Secretary of State for Justice

Mr. Naeem, a Muslim chaplain, was appointed by the Prison Service in 2004.  Before 2002, the Prison Service only employed Christian chaplains and it is only since 2002 that chaplains of other faiths have been recruited.  Progression on the Prison's pay scale was achieved by a combination of length of service and performance but it took 16 years to progress to the top of the payscale.  Mr. Naeem brought a claim for indirect discrimination on the grounds of religion and race on the basis that he was disadvantaged for being a Muslim chaplain because the length of service criterion meant that long serving chaplains, who were exclusively white and Christian, were more likely to have progressed higher up on the pay scale. 

The Tribunal accepted Mr. Naeem's argument that there were no material differences between chaplains employed before or after 2002 and that this was the correct pool for comparison.  It therefore considered that Muslim chaplains were put at a particular disadvantage.  However, the Tribunal considered that the pay scale was objectively justified and dismissed the claim.

Mr. Naeem appealed the objective justification finding and the Prison Service cross appealed on the "material differences" comparator point. 

Decision

The EAT upheld the Prison Service's cross appeal, which was determinative of the claim.  The EAT accepted the Prison Service's argument that chaplains employed before 2002 were in materially different circumstances to chaplains employed after that date.  It held that the correct comparator pool should have been a non Muslim chaplain who also started in 2004.  Within this pool, Muslims were not put at particular disadvantage.

In coming to this conclusion, the EAT distinguished this case withHomer v Chief Constable of West Yorkshire Police.  In Homer, the PCP complained of was a criterion that an employee could not be admitted to an upper pay threshold without holding a law degree.  Mr. Homer was coming up to retirement age and did not have a sufficient period of service remaining to enable him to obtain the law degree in time.  The Supreme Court rejected the argument that the pool for comparison should be other employees who were equally close to leaving service.  It held that Mr. Homer had been put at a particular disadvantage.  The EAT held that Naeem could be contrasted with Homer as in the latter, the protected characteristic (age) was inseparably linked to the question of the time needed to undertake the law degree required.  However, in the case at hand, there was no inherent link between the protected characteristics of race or religion and time.  Mr. Naeem's real complaint was that the Prison Service did not employ Muslim chaplains before 2002.  Given this conclusion, the EAT did not need to decide the question of objective justification.

Comment

The pool eventually chosen by the EAT (chaplains who joined after 2002) did include people with different lengths of service.  However, it constructed the pool so as to deliberately remove the impact of the practice of not recruiting Muslim chaplains before 2002.  It did not explain why it did this.  The EAT decision emphasized that the position in relation to length of service criteria will be different in age discrimination.  It is also well established that service related criteria indirectly discriminate against women, who are more likely to have career breaks and so shorter service.  The case highlights the benefits for employers, faced with indirect discrimination claims, in considering technical arguments about the criteria for indirect discrimination.  However, it also indicates the degree of uncertainty in this area of law and employers will often be well advised to consider whether a practice can be objectively justified where the practice might be argued to be indirectly discriminatory.