Can employees claim indirect discrimination on the grounds of race, religion and belief?
It is important for employers to consider whether any policies or practices which they are looking to implement could be indirectly discriminate against employees who have a ‘protected characteristic’ protected under the Equality Act 2010 which include age, sex, disability, race, religion or belief, gender reassignment, marriage or civil partnership, sexual orientation and pregnancy and maternity. A policy will be indirectly discriminate if it places those with a ‘protected characteristic’ at a disadvantage in comparison to those without that characteristic and if that policy is not a proportionate way of achieving a legitimate aim for the business.
In the recent case of Naeem v Secretary of State for Justice, the Employment Appeal Tribunal considered whether a career plan under which pay increases were awarded based on a combination of length of service and appraisal performance could be indirectly discriminate against Muslim Chaplains and other non-Christian Chaplains who were unable to join the Prison Service until 2002.
The Claimant had been employed by the Prison Service since 2004 and brought a claim for Indirect Discrimination on the grounds of the ‘protected characteristics’ of religion or belief and race. The Claimant argued that the Prison Service’s practice of increasing pay based in part on length of service had put him at a disadvantage compared to Christian Chaplains who were able to join the Prison Service prior to 2002 and that having such a policy was not a proportionate way of achieving the aims of recognising contribution and experience.
In considering whether Muslim Chaplains had been at a disadvantage, the Employment Tribunal compared Muslim Chaplains against all non-Muslim Chaplains in the Prison Service, including those employed by the Prison Service prior 2002, and found that the policy had placed Muslim Chaplains at a disadvantage as the length of service which could be considered was shorter due to restrictions on their start date. However, on appeal to the Employment Appeal Tribunal (EAT), this decision was overturned. The EAT took the view that it was incorrect for them to compare Muslim Chaplains with those employed prior to 2002 as the position prior to 2002 gave rise to materially different circumstances. It was not a comparison of like for like. Muslim Chaplains should have been compared to all non-Muslim Chaplains employed since 2002 only and when applying this comparison, the EAT held that the policy impacted Muslim Chaplains in the same way it impacted those of other races and religions and could not be indirectly discriminate.
The EAT went on to consider the question of whether the policy had been a proportionate means of achieving a legitimate aim and held that although the employer had been pursuing a legitimate aim in applying that policy, the employer could have considered alternative ways of minimising the discriminatory effect the policy would have on non-Christian Chaplains who were unable to join the Prison Service before 2002. It is therefore important that employers consider all options available to them when implementing a policy which could potentially have an indirectly discriminate effect on employees.