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Employment Law

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Veale Wasborough Vizards , 18 DEC 2015

Non-discriminatory reason for lower pay of Muslim prison chaplains

Helen Hughes
Solicitor, Veale Wasbrough Vizards

The Court of Appeal (CA) has found that lower pay of Muslim prison chaplains through a pay structure based on length of service did not amount to indirect discrimination.

In Naeem v Secretary of State for Justice, the Prison Service only started employing Muslim chaplains from 2002 as there was no previous demand. Mr Naeem began working as a Muslim chaplain for the Prison Service in 2004 and started at the bottom of the pay band. Within time he moved up the pay bands based on a combination of length of service and performance.

Before 2002 the Prison Service only employed Christian chaplains and, as a result, Christian and white chaplains were more represented at the higher end of the pay band.

Mr Naeem brought an indirect religious discrimination claim arguing that he had been disadvantaged as a result of the application of the length of service criterion in the Prison Service;s pay structure, which meant that the average pay of Muslim chaplains was lower than that of the Christian chaplains.

VWV have reported on the Employment Appeal Tribunal's (EAT) decision in this case.

The CA reached the same conclusions as the EAT: that there was no indirect discrimination, but for different reasons.

Contrary to the EAT's findings, the CA found that the key to the case was the Employment Tribunal's original conclusion that the average shorter length of service for Muslim chaplains was due to a shortage of demand prior to 2002. This non-discriminatory reason meant that Muslim chaplains were not put at a particular disadvantage.

As a result, Mr Naeem's claim for indirect discrimination was dismissed by the CA without the need to consider arguments about justification of the pay structure.

Best practice

It should be noted that this case is specific to its facts and each case will be determined on its own facts.

It is arguable from the CA's reasoning in this case that an additional layer has been added in order for indirect discrimination claims to be made out, focusing on the reason why the alleged disadvantage occurs. This could potentially make indirect discrimination harder to establish going forward.

Although Mr Naeem was ultimately unsuccessful in his indirect discrimination claim in this case, it is a reminder to employers to keep existing pay structures under review, and to also explore alternative criteria and arrangements where there is a possibility of certain groups of employees being put at a particular disadvantage.

It is understood that further permission to appeal to the Supreme Court has been sought in this case and we will keep you updated with any further developments.


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