Indirect Discrimination: Identifying the Comparison Group

Indirect Discrimination: Identifying the Comparison Group

The Employment Appeals Tribunal (EAT) has recently been asked to consider in a claim for indirect discrimination which is not based upon age whether the passage of time is a valid consideration when trying to identify the correct comparison group.
As it turns out this is not something that should be taken into account.
In the case of Naeem v Secretary of Statement for Justice Mr Naeem was a Muslim prison chaplain who was subject to an incremental pay scale based on his length of service which was common to all prison chaplains employed by the Ministry of Justice.
Mr Naeem’s employment began in 2004. However prior to 2002 the Ministry of Justice only employed Christian chaplains. Mr Naeem argued that he and the other Muslim chaplains had been subjected to a disadvantage in relation to their earnings because they could only progress through the pay scale from 2002 onwards.
This argument was accepted by the Employment Tribunal who considered that the correct pool for comparison should include the Christian chaplains employed before 2002. However on appeal the EAT disagreed. They held that this approach would contravene s.23 of the Equality Act 2010. This section provides that there must be no material difference between a Claimant and the comparison group other than the protected characteristic. As there had been no Muslim chaplains employed before 2002 the correct comparison in this case should have been a non-Muslim who had started their employment in 2004.
In the previous case of Homer v Chief Constable of West Yorkshire Police the Supreme Court considered a claim where the Claimant claimed indirect discrimination on the grounds of his age where Mr Homer’s age was linked to a time-related provision criterion or practice.
In Naeem the EAT sought to draw a contrast between Homer and the current case and stated that because there was no link between the protected characteristics of religion/belief or race and time in the same way that there may be in relation to age any time-related factors relating to a time before the Claimant’s employment began were not appropriate to take into account when identifying the comparison group.
This case suggests that the approach of the EAT when identifying a group for comparison in indirect discrimination cases would be fairly clear (most of the time) and will require the members of the group to have no material difference with the Claimant other than the protected characteristic. If a comparison group has any other material differences to the Claimant then it is more difficult to prove that the reason for a detriment being suffered is because of a protected characteristic as is could have been caused by any of the other material differences.
If you are an employee or a worker and you believe that you have been discriminated against harassed or victimised by your employer on the grounds of your race religion or belief sex sexual orientation disability or age please contact the dedicated employment team at Michael Lewin Solicitors who will be happy to discuss your situation with you.
Written by
Anthony Fox

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