Naeem v The Secretary of State for Justice

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Underhill,Lord Justice Lewison,Lord Dyson
Judgment Date09 December 2015
Neutral Citation[2015] EWCA Civ 1264
Date09 December 2015
Docket NumberCase No: A2/2014/0484

[2015] EWCA Civ 1264

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM The Employment Appeal Tribunal

Mr Recorder Luba QC and 2 lay members

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Dyson

( The Master of the Rolls)

Lord Justice Lewison

and

Lord Justice Underhill

Case No: A2/2014/0484

Between:
Naeem
Appellant
and
The Secretary of State for Justice
Respondent

Mr Sean Jones QC and Ms Amy Rogers (instructed by Slater & Gordon) for the Appellant

Mr Thomas Linden QC and Mr Niazi Fetto (instructed by the Government Legal Department) for the Respondent

Hearing date: 10 th November 2015

Lord Justice Underhill
1

This appeal concerns alleged discrimination in the remuneration of chaplains employed in HM Prison Service 1. By section 7 of the Prison Act 1952 there is a statutory obligation on the Secretary of State to appoint "a clergyman of the Church of England" as a chaplain at every prison in England. By section 10 he is empowered also, where "the number of prisoners who belong to a religious denomination other than the Church of England is such as in the opinion of the Secretary of State to require the appointment of a minister of that denomination", to appoint such a minister to that prison. Some chaplains are employed (full-time or part-time); others are engaged on a sessional basis. As at November 2010 there were 353 employed chaplains in the Prison Service, of whom 109 were Church of England, 112 Christian of other denominations, and 89 Muslim.

2

The Claimant in these proceedings, the Appellant before us, is an imam. He is of Pakistani origin. In June 2001 he was appointed a chaplain at HMP Bullingdon. He initially worked on a sessional basis but with effect from 25 October 2004 he started employment as a full-time chaplain. He and the Church of England chaplain have at all material times been the only employed chaplains at Bullingdon, though a number of others have worked on a sessional basis. 2

3

As is usual in the public sector, employees in the Prison Service are assigned to "pay bands" on an incremental scale, which determine their basic pay. Employees can expect to progress up the scale, and thus receive increased earnings, year-by-year. There has for many years been a performance element in the rate of progression. The details are irrelevant and have changed over the period with which we are concerned: all that matters for our purposes is that basic pay will go up each year provided the employee receives at least an "achieved" marking on their annual appraisal. Increases as a result of progress up the scale are distinct from any increase on account of increases in the cost of living.

4

When he was first employed in 2004 the Claimant was assigned to "Chaplaincy Payband 1", to which I will for convenience refer simply as "the chaplaincy payband" 3. At that time it comprised 101 "spinal points". The Claimant started at the bottom of the band. On the basis of an "achieved" assessment, progression was typically at a rate of six points per year, so that it would take him no fewer than seventeen years to progress from the bottom of the scale to the top. However, the Prison Service has for some time recognised that many or most of its pay-bands are too long, and it has been its target gradually to reach a point at which movement from

the bottom of a band to the top would take no more than six years. In accordance with that policy, accelerated progression applied to the chaplaincy payband in the four years 2007/8 to 2011/12, and the lower points on the scale were deleted; but the process was then stalled as a result of public sector pay restraint. The result is that at the date that these proceedings were commenced, on 21 April 2011, it would take nine years (again, assuming an "achieved" assessment each year) to get from the bottom of the band to the top. The Claimant was less than half-way up, earning a basic salary of £31,606 p.a. Chaplains at the top of the band were earning £36,703. (I should say that total gross remuneration was substantially higher – in the Claimant's case totalling £39,735 – as a result of his entitlement to a "Chaplain Required Hours Allowance" and a "Local Pay Allowance". But this claim is concerned with basic pay.)
5

The starting-point for the Claimant's complaint is the fact that the average basic pay of Muslim chaplains on the chaplaincy payband is lower than the average basic pay of Christian chaplains. This was established from figures supplied by the Prison Service in response to a questionnaire and was not in issue before the ET. As at 1 April 2011 the average basic pay for Muslim chaplains was £31,847 whereas for Christian 4 chaplains it was £33,811.

6

It is common ground that the higher average pay of Christian as compared with Muslim chaplains is the result of the fact that the Prison Service only began to employ Muslim chaplains in 2002. Before that date they were engaged, as the Claimant was between 2001 and 2004, only on a sessional basis. The result is that whereas there were in 2011 a substantial number of Christian chaplains who started employment before 2002, all employed Muslim chaplains will have started employment on or after that date. It necessarily follows that the average length of service of Christian chaplains as a group is greater than the average of length of service of Muslim chaplains as a group – the figures are 5.76 and 9.43 years respectively; and the operation of the incremental pay system means that that produces a differential in pay.

7

I should at this stage set out one important finding made by the ET which goes beyond the purely factual. In her submissions the Claimant's then counsel, Ms Catrin Lewis, had described the fact that no Muslim chaplains had been employed prior to 2002 as "a religion bar". The tribunal did not accept that characterisation. It said, at para. 20.4 of its Reasons:

"We think that that phrase was an unfortunate one, which we cannot endorse in fairness to the Respondent. It implies an arbitrary and potentially directly discriminatory decision to exclude Muslims from employment. That was not the case advanced by the Claimant, and we find as a fact that it was not what happened. As the data referred to above indicate, there were no Muslim Chaplains in employment at a time when there appeared objectively to be insufficient numbers of Muslim

prisoners to warrant the employment of Muslim Chaplains, as opposed to their engagement on a sessional basis."

In short, the ET found (a) that until 2002 the number of Muslim prisoners was not such that there was judged to be a need for employed Muslim chaplains and (b) that that judgment was "objective". On that basis it held that the non-employment of Muslim chaplains prior to 2002 was not discriminatory: if that is not quite explicit in the passage quoted, it is clear from para. 20.7 (quoted in full at para. 31 below), where the tribunal referred to having found "that the reason for Muslims' late joining of service was not of itself discriminatory or for an unlawful reason".

8

Those findings reflected the evidence of Ms Michelle Crerar, the Policy and Support Manager within Chaplaincy HQ at NOMS, who made a witness statement and also gave oral evidence. She said in her witness statement that "the change to enable Muslim Chaplains to be employed by the Service was part of a programme of work to meet the needs of the growing Muslim prisoner population": the number of Muslim prisoners had grown from 2,745 in 1995 to 5,046 in 2001 and 7,216 in 2005 (and indeed – though this may be strictly immaterial – to 11,261 in 2011). She also referred to "the combating extremism agenda".

9

Mr Sean Jones QC, who appeared for the Claimant before us, made it clear that he did not seek to challenge the ET's findings as to the reason why no Muslim chaplains were employed before 2002 or its decision that that reason was not discriminatory. He would in any event have had difficulty doing so given that, as the ET records, no case that the pre-2002 practice was discriminatory had been advanced. 5

10

Since Christian chaplains are predominantly (though not exclusively) white and Muslim chaplains predominantly (though not exclusively) non-white, there is also a disparity between the average basic pay of white and non-white chaplains on the chaplaincy payband; but, for reasons which will appear, I need not set out the figures.

11

Against that background, the Claimant's complaint in these proceedings was summarised by the Employment Judge, with the agreement of both parties, as follows:

"The Respondent has a long pay ladder with slow progression up the ladder. Most entrants start at the bottom rung. Muslim Chaplains have been unable to join the ladder before 2002. Anglican Chaplains have been able to do so for many years. 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 Claimant says that that inequality entitles him to claim for indirect religious, alternatively racial, discrimination. There is no claim of direct discrimination.

12

The relevant provisions of the Equality Act 2010 are as follows:

(1) Section 4 defines the protected characteristics, which include race and religion or belief. Those characteristics are the subject of more detailed provisions in sections 9 and 10 respectively, but there is nothing in those provisions material for present purposes.

(2) Section 13 defines direct discrimination. I need only set out sub-section (1), which reads:

"A person (A) discriminates...

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