Greenland v Secretary of State for Justice

For indirect discrimination under section 19 of the Equality Act 2010, a provision, criterion or practice must disadvantage the claimant and other actual persons sharing the protected characteristic. In a claim concerning the terms of appointment of existing members of a public body, the comparison does not extend to hypothetical future members.

A comparison under section 23 is invalid where the remunerated roles, considered as a whole, have material differences. Objective justification requires a legitimate aim and means that are both appropriate and reasonably necessary to achieve it.

The appellant, a black non-judicial member of the Parole Board, received a lower daily fee for chairing certain oral hearings than retired judicial members, all of whom were white. He alleged indirect race discrimination under section 19 of the Equality Act 2010.

The Employment Tribunal dismissed the claim. It held that no other black person was accredited to chair the relevant hearings, that retired judges and non-judicial members were materially different comparators, and that the higher fee was justified by the need to reduce the backlog of oral hearings. The appellant challenged all three conclusions.

1. Appeal dismissed. Although the Tribunal had addressed the wrong question on group disadvantage, that error could not affect the result because its findings on material difference and objective justification were sustainable.

2. Section 19(2)(b) requires more than the claimant’s individual disadvantage. The relevant question was whether another black non-judicial member of the Parole Board existed during the material period. The fee-setting practice would apply to such a member if appointed to chair an oral hearing; it was not necessary that the member had already been accredited as a chair. The assessment of the Secretary of State’s remuneration practice could not depend upon the Board’s internal arrangements for appointing chairs.

3. However, the comparison did not include non-existent or hypothetical future members of the Board. In the context of terms of appointment of existing office-holders, section 19 concerned the impact of the practice on the actual groups of retired judges and non-judicial members. The evidence did not establish whether another black non-judicial member existed, and the Tribunal had not determined that issue. It was unnecessary to remit it.

4. The Tribunal was entitled under section 23 of the Equality Act 2010 to find material differences. Retired judges were paid for their work as members generally, not for an isolated IPP-hearing task. They could chair life-sentence hearings, undertook a broader range of work, and possessed judicial legal skills, experience and training not held by non-judicial members. The comparison was therefore invalid for section 19 purposes.

5. Separately, applying Chief Constable of West Yorkshire v Homer [2012] ICR 704, the increased fee was an appropriate and necessary means of the legitimate aim of reducing the backlog of life-sentence and IPP oral hearings. Retired judges were needed to undertake work that non-judicial members could not immediately or lawfully perform, and the increased fee materially assisted their recruitment.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal’s dismissal of the indirect race discrimination claim was upheld.
• Employment Tribunal: Dismissed the claim for indirect race discrimination. Its decision is not separately cited in the judgment.