Length of service
Labour & European Law Review Weekly Issue 455 03 February 2016
Claimants in indirect discrimination claims have to prove that their employer applied a criterion which put them at a particular disadvantage. In Naeem v Secretary of State for Justice, the Court of Appeal held that a pay system which was based on length of service was not discriminatory against Muslim prison chaplains because it was not the reason for the disparity in pay with Christian chaplains.
Mr Naeem started work for the prison service as a Muslim chaplain on a sessional basis in 2001. He then started employment as a full-time chaplain in 2004 at the bottom of a very long pay band. Progression to the top was based on length of service and a performance appraisal system, with employees typically moving up the band at the rate of six points per year.
By April 2011 he was less than half way up with a further nine years ahead of him to get to the top. In April 2011, he claimed that, as the average basic pay of Muslim chaplains was lower than the average basic pay of Christian chaplains, the prison service was guilty of indirect discrimination on the grounds of race and religion under section 19(2)(b) of the Equality Act.
However, the prison service argued that as it only started employing Muslim chaplains in 2002 (previously they had all been employed on a sessional basis), it was inevitable that more Christian chaplains would be at the top of their pay band, resulting in higher average basic pay.
Section 19(2)(b) states that it is discriminatory for A to apply a provision, criterion or practice to B if it puts people with whom B shares a protected characteristic at a particular disadvantage when compared with people who do not share that characteristic.
Tribunal and EAT decision
The tribunal held that the non-employment of Muslim chaplains prior to 2002 was not discriminatory and that the decision to employ more chaplains after that date was due to the increase in the number of Muslim prisoners. It also held that although the prison service had indirectly discriminated against Mr Naeem, the claim failed because it was justified.
The EAT disagreed with the tribunal’s reasoning but dismissed Mr Naeem’s appeal on the basis that there was no indirect discrimination.
Decision of Court of Appeal
The Court of Appeal accepted Mr Naeem’s argument that it was necessary to consider the effect of the length of service criterion not simply in the abstract but also in its effect on the actual population to which it was applied. However, if that showed a disparity in pay between Muslim and Christian chaplains, it was then open to the prison service to go behind the bare fact and consider the reason for the difference.
In this case, it was because there was no need for employed Muslim chaplains prior to 2002. The reason therefore for the lower basic pay of Muslim chaplains was not the use of the length of service criterion, but the fact that they had only started to be employed more recently by the prison service. That did not reflect any characteristic peculiar to them as Muslims, but was just a reflection of the fact that there was no need for their services (as employees) before that date.
An employer can rebut a claim of indirect discrimination by showing that an apparent disparate impact is in fact the result of wholly non-discriminatory factors. The average shorter length of service of Muslim chaplains was not the result of any discriminatory practice and consequently Muslim chaplains were not put at a particular disadvantage by the prison service so Mr Naeem’s claim failed.