The claimant appealed against rejection of his claim for discrimination when under the 1952 Act, there was a requirement to appoint a member as pastor of the prison a Clergyman of the Church of England, and other chaplains, including himself, an imam, were paid less.
Held: The claimant’s appeal failed. It was not enough to show that the length of service criterion had a disparate impact upon Muslim chaplains. It was also necessary to show that the reason for that disparate impact was something peculiar to the protected characteristic in question.
Underhill LJ said: ‘I do not agree that if it is shown, as it is here, that the use of the criterion leads to a disparity in the pay of Muslim and Christian chaplains, the enquiry under section 19 (2) (b) must end at that point. In my view it was and is open to the Respondent to go behind the bare fact that Muslim and Christian chaplains have different lengths of service and seek to establish the reason why that was so. What has been established in this case – indeed it was never in dispute – is that the reason for the difference is that there was no need for employed Muslim chaplains prior to 2002[6]. That being so, I do not believe that it can properly be said that it is the use of the length of service criterion which puts Muslim chaplains at a disadvantage, within the meaning of section 19 (2) (b). The concept of ‘putting’ persons at a disadvantage is causal, and, as in any legal analysis of causation, it is necessary to distinguish the legally relevant cause or causes from other factors in the situation. In my view the only material cause of the disparity in remuneration relied on by the Claimant is the (on average) more recent start-dates of the 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.’
Judges:
Lord Dyson MR, Lewison, Underhill LJJ
Citations:
[2015] EWCA Civ 1264, [2016] ICR 289, [2016] IRLR 118, [2015] WLR(D) 517
Links:
Statutes:
Prison Act 1952 7, Equality Act 2010 19
Jurisdiction:
England and Wales
Citing:
Appeal from – Naeem v The Secretary of State for Justice EAT 15-Jan-2014
EAT Race Discrimination : Indirect – RELIGION OR BELIEF DISCRIMINATION
Until 2002 the only Chaplains employed by the Prison Service were Christians. Since then, Chaplains of other faiths have been . .
Cited by:
Appeal from – Essop and Others v Home Office (UK Border Agency) SC 5-Apr-2017
The appellants alleged indirect race and belief discrimination in the conditions of their employment by the respondent. Essop came as lead claimant challenging the tests used for promotion. Statistics showed lower pass rates for BME candidates, but . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Updated: 25 July 2022; Ref: scu.556791