Geneviv Boohene & Ors v The Royal Parks Ltd

The Court of Appeal considered whether Royal Parks Ltd's policy and practice of not requiring or funding contractors to pay the London Living Wage (LLW), while its directly-employed staff received the LLW, amounted to indirect racial discrimination under section 19 in combination with the contract-worker provision in section 41 of the Equality Act 2010. The Employment Tribunal had found a PCP confined to the Vinci toilets and cleaning contract and a disparate impact on BME workers; the Employment Appeal Tribunal set that decision aside on the ground that the pleaded PCP covered all outsourced workers and the Claimants had not proved disparate impact across that wider pool.

The Court of Appeal (Underhill LJ, with whom the other members agreed) held that many of the detriments asserted by the Claimants derived from the contractual relationship between the workman and their employer (Vinci) rather than from any act by the principal (Royal Parks) within the scope of section 41(1). Applying the reasoning in Allonby and related authorities, the court concluded that section 41 is aimed at detriments arising from the principal-worker relationship (for example, conditions imposed by a principal as a condition of being allowed on site) and does not convert ordinary contractual terms set by the supplier into terms of the principal-worker relationship merely because the principal influenced the contract price or procurement process.

Accordingly, the Court allowed grounds of Royal Parks' Respondent's Notice that the claim, insofar as it related to pay terms under Vinci contracts, fell outside section 41(1) and that Royal Parks had not applied a PCP within s.19. The Court also agreed with the EAT that the pleaded PCP was a general policy applying to all outsourced workers and that the Claimants had failed to prove disparate impact across that pool. The appeal was dismissed.

Background and parties: Sixteen Vinci-employed workers who worked on a toilets and cleaning contract in the Royal Parks brought claims of indirect racial discrimination. They alleged that Royal Parks' practice of paying its own employees at not less than the London Living Wage, while not requiring or funding contractors to pay that rate, amounted to an unlawful PCP under section 19 read with section 41 of the Equality Act 2010. Most Claimants were of black or minority ethnic origin. The ET found for the Claimants on a pool comprised of Royal Parks' direct employees and Vinci's toilet/cleaning workforce; the EAT set that decision aside. The matter reached the Court of Appeal on the Claimants' appeal and on a Respondent's Notice advanced by Royal Parks.

Procedural history: Employment Tribunal (Judge Grewal): claim allowed on indirect discrimination grounds; Employment Appeal Tribunal (President Eady): ET decision overturned and claim dismissed on the ground that the pleaded PCP covered all outsourced workers and disparate impact was not proved; Court of Appeal: appeal dismissed.

Nature of claim / relief sought: Indirect race discrimination by reason of a PCP (described by Claimants as a "minimum pay PCP"), seeking declarations and remedies available for discrimination under the Equality Act 2010. The claim was principally advanced under section 41(1)(a) of the Act and alternatively under section 41(1)(d).

Issues framed:

• Whether Royal Parks' conduct fell within the scope of section 41(1) as a principal (i.e. whether the detriment complained of was a term on which the principal "allowed" the worker to do the work or whether the principal otherwise subjected the worker to detriment).
• Whether a PCP had been applied and, if so, how that PCP should be defined (Vinci-only pool v all outsourced workers), because PCP definition determines the comparison pool for disparate impact.
• Whether the Claimants proved disparate impact across the properly defined pool and whether any PCP could be justified.
• Whether the EAT should have remitted the matter to the ET for re-hearing.

Court's reasoning: The court analysed the statutory purpose and structure of section 41 and the distinction between detriments arising from the principal-worker relationship and contractual terms set by a supplier-employer. It applied guidance from Allonby, Essop and related decisions on PCP identification and pool selection. The Court concluded:

• Section 41 targets acts or conditions applied by a principal to a contract worker in the context of the principal-worker relationship (for example, access to facilities or conditions imposed by the principal), not ordinary contractual terms set by the supplier merely influenced by the principal through procurement pricing.
• The ET was wrong to construe the claim such that the relevant PCP was confined to the Vinci contract; objectively the pleaded PCP was a general Royal Parks policy not to require or fund LLW for contractors, i.e. it applied across outsourced workforces, and that definition dictated the pool for comparison.
• The Claimants had not adduced evidence about the remainder of the indirectly-employed workforce (ethnic composition and pay) necessary to prove disparate impact across the pleaded pool; they had failed to seek disclosure or further particulars that might have supplied it.
• Accordingly, the EAT was correct to dismiss the ET's decision: on the pleaded PCP and the evidence, the Claimants did not make good disparate impact.

Wider implications: The court emphasised (i) the distinction between harms arising from principal-imposed conditions and harms that derive from the supplier-employer contract; (ii) the centrality of correct PCP and pool identification in indirect discrimination claims; and (iii) the parties' responsibility to identify evidential needs (and, if necessary, seek disclosure) at case management stages in complex outsourcing discrimination claims.

The Court of Appeal dismissed the appeal. It held that many of the pay-related detriments alleged derived from the contractual relationship between Vinci and its employees and so fell outside the scope of section 41(1) of the Equality Act 2010, which addresses detriments arising from the principal-worker relationship. The court also agreed with the EAT that the pleaded PCP was a general Royal Parks policy applying to all outsourced workers and that the Claimants failed to prove disparate impact across that wider pool because they did not adduce necessary evidence about other contractors' workforces. For those reasons the ET’s finding in favour of the Claimants was set aside and the appeal dismissed.

Employment Tribunal (London Central) – claim of indirect race discrimination allowed by ET (Employment Judge Grewal) (reasons sent 17 November 2021); Employment Appeal Tribunal (President Eady) – ET decision overturned and claim dismissed (EA-2021-001282-OO); Court of Appeal (Civil Division) – appeal dismissed [2024] EWCA Civ 583.