The Royal Parks Ltd v G Boohene & Ors

A principal may be liable to contract workers under Equality Act 2010, section 41 where, viewed realistically, it has effectively dictated a term on which they perform work. The fact that the contractor implements that term through its employment contracts is not necessarily decisive.

For indirect discrimination, however, the provision, criterion or practice must be identified accurately. The comparison pool then follows logically and must include all persons affected, advantageously or disadvantageously. A pool which compares direct employees with workers on only one outsourced contract, while excluding other outsourced workers affected by the alleged two-tier pay practice, is incomplete and indefensible.

The claimants were employed by Vinci Construction UK Ltd to provide toilet maintenance and cleaning services under a contract with the respondent. They were paid below the London Living Wage until late 2019, whereas the respondent’s direct employees were paid at least that rate.

The Employment Tribunal upheld claims of indirect race discrimination under sections 19 and 41 of the Equality Act 2010. It found that the respondent had applied a practice under which its own employees, but not workers on the Vinci contract, were guaranteed the London Living Wage.

The respondent appealed. The central issues were whether section 41 applied, whether the respondent had applied the alleged PCP, and whether the PCP and comparison pool had been validly defined.

1. Appeal allowed. The Tribunal’s judgment was set aside and the indirect race discrimination claims were dismissed.

2. The Tribunal was entitled to find that the claims fell within section 41(1) of the Equality Act 2010. Section 41 concerns the principal’s treatment of a contract worker; it is not an automatic route to parity with the principal’s employees. Nevertheless, contractual arrangements between worker and contractor are not determinative. The statutory question is the terms on which the principal allowed the worker to perform the work.

   Applying the purposive approach in Allonby, the Tribunal could take a real-world view. The respondent had been offered alternative tender prices, had selected the option below the London Living Wage, had scrutinised the proposed hourly rate, reserved the power to revisit minimum pay, and later required London Living Wage rates. On those facts, it permissibly found that the principal had effectively determined the relevant minimum-pay term. Grounds 3 and 4 were dismissed.

3. The Tribunal erred, however, in defining the PCP and consequential pool. The pleaded case alleged a two-tier practice between direct employees and outsourced workers generally. The Tribunal instead confined the disadvantaged group to Vinci workers on the toilet and cleaning contract, while including every direct employee. That excluded other outsourced workers from a PCP which necessarily concerned the respondent’s treatment of directly and indirectly engaged workers.

   Identification of the PCP is the first step; the pool must then be selected logically and include the whole group affected by it. The Tribunal’s restricted pool was incomplete and indefensible. That error prevented the claimants from establishing the necessary group disadvantage and required dismissal of the claims.

4. The respondent’s alternative argument that the matter was merely a one-off act was rejected. The claimants had relied on an underlying practice, including the retained power to revisit the London Living Wage and subsequent reviews.

5. Although academic, the Tribunal had been entitled to find that the identity of the employer and nature of the work were not material differences for the London Living Wage comparison on these facts. The separate claim of Mr Marro, who did not share the relevant protected characteristic, had not been determined by the Tribunal; absent the dispositive error, that issue would have been remitted.

• Employment Appeal Tribunal: allowed the respondent’s appeal, set aside the Employment Tribunal’s decision, and substituted dismissal of the claims: [2023] EAT 69.
• London Central Employment Tribunal: upheld the claimants’ indirect race discrimination complaints in a judgment sent to the parties on 17 November 2021.