EAT Race Discrimination: Indirect – This is an appeal against a decision of the employment tribunal dismissing a claim for indirect discrimination. The case concerned the remuneration paid to different categories of members of the Parole Board. For a period between November 2009 and 1 April 2014, the Secretary of State determined that retired judges serving as members of the Parole Board and who chaired oral hearings were to be paid a higher fee than non-judicial members who chaired certain oral hearings. All the retired judges were white. The Appellant, who was a non-judicial member of the Parole Board, was black. He contended that the fixing of a higher fee for the retired judges constituted indirect discrimination as it amounted to a practice which put persons who shared his protected characteristic (race) at a particular disadvantage as compared with persons who did not share that characteristic. The employment tribunal found that the practice did not fall within section 19 of the Equality Act 2010 as the Appellant was the only black non-judicial member appointed to chair oral hearings and the Appellant had not demonstrated that there was any other person sharing the Appellant’s protected characteristic whom the practice put, or would put, at a particular disadvantage. Further, the tribunal decided that there were material differences between the circumstances of the cases of retired judges and non-judicial members. Furthermore, the tribunal considered that, in any event, the practice of paying an increased fee to retired judges serving as members of the Parole Board was objectively justified in the particular circumstances of the case.
On the first issue, the determination by the Secretary of State to pay a different, and lower, fee to retired judges serving as members of the Parole Board put, or would put, a non-judicial member sharing the protected characteristic of the Appellant at a particular disadvantage when compared with persons not sharing that characteristic. The question was whether there was a non-judicial member of the Parole Board (not whether there was a non-judicial member appointed to chair) who shared the Appellant’s protected characteristic at the material time. The Tribunal did not address that issue. In any event, however, the tribunal were entitled to find on the facts that there were material differences between the circumstances of the retired judges and the non-judicial members. Only the former were eligible to sit on cases involving prisoners sentenced to life imprisonment and the work that the retired judges did, and the qualifications and skills they had, were materially different from those of the non-judicial members. The tribunal were also entitled to find that the increase in remuneration for retired judges was objectively justified as it was both an appropriate and necessary means of achieving the legitimate aim of reducing the backlog of oral hearings involving prisoners sentenced to life imprisonment and imprisonment for public protection.
Lewis J
[2015] UKEAT 0323 – 14 – 2801
Bailii
England and Wales
Employment
Updated: 27 December 2021; Ref: scu.541958
