Case watch

On this page you will find key cases and sources of information on them.

Essop and others  v Home Office (UK Border Agency); Naeem  v Secretary of State for Justice [2017] UKSC 27

As both these cases raise questions about the interpretation of indirect discrimination, the Supreme Court heard them together; however, as only Naeem refers to equal pay, albeit (and unusually) on grounds of religion or belief, only Naeem is considered here.

The facts

Mr Naeem is an imam who works as a chaplain in the Prison Service. Before 2002, Muslim chaplains were engaged on a sessional basis only, because it was believed that there were too few Muslim prisoners to justify employing them on a salaried basis, as some Christian chaplains were. Mr Naeem worked on a sessional basis from 2001, but in 2004 became a salaried employee. At this date the pay scheme for chaplains incorporated pay progression over time. The average length of service of Christian chaplains was longer, which led to a higher average basic pay. Mr Naeem argued that the incremental pay scheme was indirectly discriminatory against Muslim or Asian chaplains, resulting in lower pay in a post where length of service served no useful purpose as a reflection of ability or experience.

The previous decisions

Mr Naeem’s claim was rejected by the Employment Tribunal which found that the indirect discrimination was justified.

The Employment Appeal Tribunal held that the scheme was not indirectly discriminatory at all because chaplains employed before 2002 should be excluded from the comparison between the two groups.

The Court of Appeal held that it was not enough to show that the length of service criterion had a disparate impact upon Muslim chaplains: it was also necessary to show that the reason for that disparate impact was something peculiar to the protected characteristic of race or religion.

The decision of the Supreme Court

The Supreme Court held that in Mr Naeem’s case the reason why the pay scale puts Muslim chaplains at a disadvantage is known. It is because they have on average shorter lengths of service than Christian chaplains. The Supreme Court held that the Court of Appeal was wrong to require the reason to relate to the protected characteristic, in this instance, of religion or belief. The pool of comparators comprises all workers affected by the provision, criterion or practice in question. In this case the incremental pay structure affected all chaplains in the Prison Service and this did put the Muslim chaplains at a disadvantage compared with the Christians.

As regards justification, it was not in dispute that the pay scheme had a legitimate aim but the means adopted needed to be proportionate. The Employment Tribunal had found as a fact that six years was the most required for newly appointed chaplains to have the skills and experience for reward at the top of the scale, but that in the circumstances the disadvantage suffered by Mr Naeem was no more than was necessary as the transition to a new shorter pay scale took its course. The Supreme Court held that this was the correct test, and that it was not open to the appeal courts to disturb that finding, even if there were alternative means to reduce the disadvantage more quickly which could have been considered.

The Court therefore dismissed Mr Naeem’s appeal. However, in doing so, the Court noted that while the Employment Tribunal had adopted the “no more than necessary” test of proportionality from the Homer case, and could scarcely be criticised by the Supreme Court for doing so, the case was concerned with a system in transition. The question was thus not whether the original pay scheme could be justified, but whether the steps being taken to move towards the new system were proportionate. Where part of the aim is to move towards a system which will reduce or even eliminate the disadvantage suffered by a group sharing a protected characteristic, it is necessary to consider whether there are other ways of proceeding which would eliminate or reduce the disadvantage more quickly. Otherwise it cannot be said that the means used are “no more than necessary” to meet the employer’s need for an orderly transition.

The Supreme Court noted that this is a particular and perhaps unusual category of case in which the burden of proof is on the respondent, but where it is clearly incumbent upon the claimant to challenge the assertion that there was nothing else the employer could do. Where alternative means are suggested or are obvious, it is incumbent upon the Tribunal to consider them. The Supreme Court said that this was a question of fact, not of law, and if it was not fully explored before the Employment Tribunal it is not for appeal courts to do so.

You can read the full decision here.

 

Paczkowska and Golygowska v Avoca Handweavers (NI) Ltd

Two women working in a Belfast café have won an equal pay claim against their employer, Avoca Handweavers (NI) Ltd with the support of the Equality Commission.

Paulina Paczkowska and Agnieszka Anna Golygowska both worked as floor staff/baristas in the Avoca Café. By 2015, Paulina was earning £6.79 per hour and Agnieszka £6.98 per hour, while their male colleague was earning £8.46.

Both women tried to resolve the matter without going to court by taking out a grievance against the company, but their grievances were dismissed; they lodged claims with the Tribunal and their trade union referred them to the Northern Ireland Equality Commission for help.

Avoca conceded that it did not have a structured pay scheme within the business. The firm also admitted that the three employees were all doing like work and accepted that there was a disparity in pay between the man and the women but claimed that material factors other than the sex of the staff, including the fact that the comparator had asked for more money,  were the reason for the disparity.

The Tribunal ruled that the factors cited by Avoca could not explain the difference in the pay rates and awarded the women equal pay to that paid to their male colleague from May 2013.

You can read the full decision here.

McCloud and Others V Ministry of Justice and the Lord Chancellor

In a case which may have far-reaching ramifications, on the 16th January 2016, the Employment Tribunal upheld the claims of over 200 judges for unlawful age, race and sex discrimination and equal pay against the Lord Chancellor and the Ministry of Justice in relation to changes made to their pension entitlements.

The Tribunal held that the Lord Chancellor and the Ministry of Justice had discriminated against younger judges, a significant number of whom were female and/or from minority ethnic groups, by requiring them to leave the Judicial Pension Scheme in April 2015 whilst allowing older judges to remain in that Scheme, and that this discrimination could not be justified.

The Tribunal found that the changes caused younger judges to suffer a disproportionate loss to their pensions purely because they were younger.

You can find the Tribunal decision here.

Brierley v Asda stores Ltd

An Employment Tribunal has held that employees at Asda stores may use employees at Asda distribution depots as comparators in their claims of equal pay for work of equal value. The Tribunal rejected Asda’s argument that the different locations were a bar to the claim and found that Asda’s board acted as a single source for the pay of both applicants and comparators.

It is estimated that over 7000 applicants are involved, and the decision paves the way for their claims to go ahead.

You can read the decision here. 

Supreme Court grants appeal on Employment Tribunal Fee Regime

26th February 2016

The Supreme Court has granted Unison permission to continue its legal challenge to the employment tribunal fees regime introduced in 2013.

In August 2015 the Court of Appeal had rejected Unison’s claim that the employment tribunal fees regime is unlawful. Although Lord Justice Underhill said he had a strong suspicion that the large decline in tribunal cases must reflect at least some cases of individuals who cannot afford to pay the fees, there was no evidence before the Court on which it could form any reliable view about the numbers of such cases, or how typical they might be.

The appeal has not yet been listed for a hearing by the Supreme Court.

Justice Committee Inquiry into Tribunal Fees

The Justice Committee has recently held an inquiry into the effects of the introduction and levels of tribunal fees and charges. In respect of employment tribunal fees the Committee inquired into the impact of the introduction of fees on access to justice.

In its report, published in June 2016, the Committee found that, despite inconsistencies in the evidence the introduction of issue fees and hearing fees for claimants in employment tribunals as of 29 July 2013 led to an undisputed and precipitate drop in the number of cases brought, approaching 70 per cent. The number of single cases brought declined by about 67 per cent to around 4,500 per quarter from October 2013 to June 2015; and the number of multiple cases declined by 72 per cent, from 1,500 per quarter in the year leading to June 2013 to around 400 per quarter since October 2013. Most equal pay claims will be part of a multiple claim.

The Committee also said that taking into account relevant changes in employment law and an underlying trend predating the introduction of fees showing an ongoing gentle reduction in cases being taken to tribunal, the timing and size of the drop in the number of cases brought places the onus of proof on those who would argue that the drop is not primarily attributable to the introduction of fees.

You can find the chapter on the impact of employment tribunal fees here.

The Committee recommended that employment tribunal fees be substantially reduced, that the binary classification of cases be replaced, and that the disposable capital and monthly income thresholds for fee remission should be increased.

You can find the Committee’s recommendations here. 

All of the evidence submitted to the Committee is also publicly available, and you can find it here.

The Justice Committee is now awaiting a response from the Government.

 

Last updated 14th April 2017