Did the Prison Service’s pay system indirectly discriminate against Muslim prison chaplains? The Prison Service had only employed Muslim chaplains since 2002, but had employed Christian chaplains for some time before that. This meant that Muslim chaplains were generally lower on the pay scale, which was largely determined by length of service.
Indirect discrimination occurs where a neutral provision criterion or practice (PCP) has a disproportionate impact on – in this case – employees of a particular religion or belief. The PCP relied on here was the length of service pay criterion. It was argued that this clearly had a disproportionate impact on Muslim chaplains, because there was no opportunity for them to be employed before 2002.
The Court of Appeal decided that it is not enough simply to look at the disparate impact that the PCP has, but Claimants also need to be able to prove an additional matter, namely that the disparate impact was brought about by a discriminatory reason. In other words it was not enough to show that the disadvantage existed, the claimant also needed to establish a discriminatory underlying reason for it.
In this case -the Court of Appeal held – the reason for the disparity was simply that there was no demand for Muslim clerics before 2002, or at least insufficient demand to warrant the hiring of a Muslim cleric. The reason for the disadvantage was therefore the historical reason that there was insufficient demand for Muslim chaplains, and this was not discriminatory in any way.
Furthermore, it is possible to legally justify indirect discrimination by showing that it is a proportionate means of achieving a legitimate aim. In this case, the original Tribunal had found that there was good justification for having a pay scheme that was related to the length of service, because it helped retain and reward its clerics across the board.
This case confirms that it is now harder for individuals to bring claims of indirect discrimination because they need to prove the added layer of an underlying discriminatory reason for the disproportionate impact of any relevant arrangements.