Thanks to Paul Smith of Broadway House Chambers for preparing this case summary
In an indirect discrimination claim not based upon age, is the passage of time a valid consideration in identifying the pool for comparison?
No, held the EAT in Naeem v Ministry of Justice.
The Appellant was a Muslim prison chaplain and subject to a length of service incremental pay scale common to all Ministry of Justice employed prison chaplains. Prior to 2002 the Ministry of Justice only employed Christian chaplains, and the appellant had commenced his employment in 2004. He argued that because he and the other Muslim chaplains could only progress through the pay scale from 2002 onwards, they were subject to a disadvantage in terms of their earnings.
In the employment tribunal, the key question was whether the pool for comparison should include the Christian chaplains employed prior to 2002; it accepted that it should. On appeal, the EAT disagreed because to include them would contravene section 23 of the Equality Act 2010, which provides that there must be no material difference between a Claimant and the comparison group save for the protected characteristic. There had been no Muslim prison chaplains employed prior to 2002, and thus the correct "like for like" comparison in this case was a non-Muslim employee who started in 2004.
A contrast was drawn with the Supreme Court's decision in Homer v Chief Constable of West Yorkshire Police. Homer was an indirect discrimination case where the Claimant's age was inextricably linked to a time-related PCP. In Naeem the EAT stated that because there is no link between the protected characteristics of religion/belief or race and time in the way there may be with age, time-related factors predating the Claimant's employment (such as the date of the Ministry of Justice's change of recruitment policy) were not appropriate in the exercise of identifying the pool.