In Naeem v The Secretary of State for Justice  EWCA Civ 1264 Mr Naeem, the Muslim chaplain at HMP Bullingdon, sued for indirect religious or, alternatively, racial discrimination. There was no claim of direct discrimination . The MoJ has a long pay ladder for chaplains with slow progression and most entrants start at the bottom rung. Muslim chaplains were unable to join the ladder until 2002, while Anglican chaplains had been able to do so for many years. Therefore:
“Until the Claimant reaches the top of the ladder, it is likely that he will be paid less than his Christian comparators, because they were able to start on the ladder long before him, and pay relates predominantly to time spent on the ladder” .
The “provision criterion or practice” (PCP) within the meaning of s 19(2) Equality Act 2010 on which Mr Naeem relied was that, within the pay system applicable to chaplains in payband 1, an individual needed to have been employed by the Prison Service for a certain period of time to reach the top of the scale – and Muslim chaplains were therefore disadvantaged: in short, that the average basic pay of Muslim chaplains on the chaplaincy payband was lower than the average for Christian chaplains . It was common ground that the higher average pay of Christian as compared with Muslim chaplains was the result of the fact that the Prison Service only began to employ Muslim chaplains in 2002 .
The Court of Appeal dismissed the appeal from the judgment of the EAT.
Delivering the leading judgment, Underhill LJ said that the starting-point was to identify the PCP within the meaning of s 19(2) that was complained of. The PCP pleaded by the Claimant, in response to a request from the Respondent, was:
“that within the pay system applicable to those staff in the Chaplain payband 1 grade, in order to be at the top of the relevant pay scale an individual needs to have been employed by the Respondent for a certain period of time.”
At para. 20.2 of its Reasons the ET had identified the PCP as “the … pay system, which incorporates pay progression over time, which in turn is related to length of service”. Counsel for the MoJ argued that that was over-simple and that the PCP should be defined as the totality of the system for establishing basic pay, thus including both the performance element and various changes to the range designed to reduce its length; however, the Court disagreed with that proposition:
“The relevant PCP is the feature of the system which is said to have a discriminatory effect, and that is plainly the relationship between basic pay and length of service. The features referred to by [counsel] are not said to, and plainly do not, put Muslims at a particular disadvantage: there is, for example, no reason to suppose that their performance assessments differ in any way from those of Christian chaplains. What we are concerned with in this case is the effect of a length of service criterion” [18: emphasis added].
It was common ground that the PCP so defined was applied equally to Muslim and to Christian chaplains, so s 19(2)(a) was satisfied. The question was whether it put Muslim chaplains “at a particular disadvantage” within the meaning of s 19(2)(b) .
The MoJ argued that there was nothing in the length of service criterion that inherently disadvantaged Muslim chaplains: they could progress up the incremental scale in exactly the same way as Christian colleagues; and Mr Naeem had expressly acknowledged that a Christian chaplain who started employment on the same day as he had would (assuming equivalent performance) be paid the same as him:
“The only reason that Muslim chaplains have, on average, shorter service than their Christian colleagues is that none were employed earlier than 2002. That fact did not form part of the PCP complained of, and it did not in any event, as the ET held, constitute unlawful discrimination” .
The reason for the difference in pay was that there was no need for employed Muslim chaplains prior to 2002. Therefore, it was not the length of service criterion that put Muslim chaplains at a disadvantage within the meaning of s 19(2)(b). The concept of “putting” persons at a disadvantage was causal; and the only material cause of the disparity in remuneration relied on by Mr Naeem was the (on average) more recent start-dates of Muslim chaplains: “But that does not reflect any characteristic peculiar to them as Muslims: rather, it reflects the fact that there was no need for their services (as employees) at any earlier date” . In short:
“… The essential point about the present case is that the shorter average length of service of Muslim chaplains can be shown to be attributable to a factor – that is, the change in the need for their services as the proportion of Muslim prisoners grew – which does not operate to the disadvantage of Muslims.
This seems to me to the right result in principle. It is not always straightforward to prove that a particular pay practice is justified, and indeed some practices may prove on examination to be to a greater or lesser extent unfair: very lengthy incremental pay scales may be a good example. But the correction of unfair pay practices is not the business of the 2010 Act and respondents ought not to have to defend them unless there is in truth an element of discrimination…” [24-25: emphasis added].
Lord Dyson MR and Lewison LJ concurred: appeal dismissed.