The laws on indirect discrimination are an important protection against hidden barriers to equality in the workplace. The Supreme Court’s decision in the case of Naeem v Secretary of State for Justice clarifies the protections in this complex area, setting the law straight after a period of considerable confusion as to what is required to establish a claim.
The case was brought by Mr Naeem, an imam who works as a chaplain in the Prison Service. He was supported by his union, Prospect, which for over 10 years has been at the forefront of challenging indirect discrimination in pay.
Muslim chaplains were only employed by the Prison Service from 2002; so on average had shorter length of service than their Christian colleagues. The Prison Service’s pay scheme used length of service as a method for determining pay; it had long pay scales with annual increments, so those with longer service were paid more.
Mr Naeem claimed that this pay scheme was indirectly discriminatory on grounds of religion. The Employment Tribunal, Employment Appeal Tribunal and Court of Appeal disagreed as to how to test the central legal question of whether Muslim chaplains were put at a particular disadvantage by the pay system. So, one of the key questions for the Supreme Court was whether, to establish that the pay scheme was indirectly discriminatory on grounds of religion, it was enough for Mr Naeem to show that using length of service to determine pay had a disparate impact upon Muslim chaplains as a group, or whether it was also necessary to show that religion was the reason for or material cause of that disparate impact.
The Court of Appeal had held when it considered the case in 2015 that the real reason for the Muslim chaplains’ lower pay was the Prison Service’s lawful policy of not employing Muslim chaplains until 2002, that religion was not the material cause of the pay disparity, and that the pay scheme was not indirectly discriminatory on grounds of religion.
The Supreme Court did not agree; it has held that the incremental pay structure which was applied to all chaplains employed by the Prison service did put Muslim chaplains at a particular disadvantage compared with Christian chaplains. It commented that the lack of need for Muslim chaplains prior to 2002 could be said to be related to religion. And in any event, it concluded that there is no additional legal requirement for the reason or context for a particular group being disadvantaged to be related to their protected characteristic.
Following this judgment and that of Essop v Home Office which was decided at the same time, it will now be easier for claimants to establish indirect discrimination. An employee will only have to show that a policy or practice adopted by their employer disadvantages a protected group in which they are included. This can often be done by looking at statistical information. It is now clear that there is no need to go further and analyse the detail of the reason why the group is at a disadvantage, something which it is often difficult for claimants to know or fully understand.
The Supreme Court concluded by upholding the employment tribunal’s determination that in Mr Naeem’s case, although indirectly discriminatory, the pay scheme was justified. However, it emphasises that ‘wise employers’ will monitor how their policies and practices impact upon various groups, and consider whether changes can be made to minimise or reduce any negative impacts, levelling the playing field for all.
Slater and Gordon Lawyers have a specialist team of religious discrimination solicitors. For expert legal advice or representation call Slater and Gordon 24/7 on freephone 0800 049 2515 or contact us online.