Geneviv Boohene & Ors v The Royal Parks Ltd

Equality Act 2010 section 41 protects a contract worker against discrimination in the principal-worker relationship. It does not make the principal liable for discriminatory remuneration or other contractual terms fixed by the worker’s supplier, even where the principal’s tendering or pricing decisions influence those terms. A principal has not applied a discriminatory PCP merely because a supplier pays its workers under such contractual arrangements.

In any event, a PCP concerning a general policy on outsourced pay requires a pool comprising all workers affected by that policy. A claimant must prove disparate impact in that pool as pleaded. A tribunal need not remit a claim where the necessary evidence was not adduced and no disclosure was sought.

Sixteen workers supplied by Vinci Construction UK Ltd to clean public toilets and buildings in the Royal Parks were paid below the London Living Wage. All but one were from black or minority ethnic backgrounds. They claimed that the Royal Parks’ policy of paying the London Living Wage to its direct employees, but not requiring or funding Vinci to pay it, was indirect race discrimination against contract workers.

The Employment Tribunal upheld the claim using a pool limited to the Royal Parks’ employees and Vinci workers. The Employment Appeal Tribunal allowed the Royal Parks’ appeal and dismissed the claim, holding that the pleaded PCP and pool extended to all outsourced workers: EA-2021-001282-OO. The claimants appealed, while the Royal Parks renewed objections concerning section 41 and the application of a PCP.

1. Appeal dismissed. The court allowed the Royal Parks’ Respondent’s Notice on the scope of section 41 and on the application of a PCP. It upheld the Employment Appeal Tribunal’s dismissal of the claim, although principally on different grounds.
2. Equality Act 2010 section 41 concerns discrimination in the principal-worker relationship. Its purpose is to regulate a principal’s control of access to work, conditions imposed on a worker, and benefits or facilities supplied by the principal. It does not create a route by which a contract worker may claim against the principal about discriminatory rights arising under the worker’s employment contract with the supplier.
3. The alleged detriment was Vinci’s payment of less than the London Living Wage under the claimants’ contracts of employment. It was not a term on which the Royal Parks allowed them to work under section 41(1)(a), nor a detriment to which the Royal Parks subjected them under section 41(1)(d). The result did not change because the Royal Parks’ tendering and pricing arrangements influenced what Vinci could afford to pay. Allonby v Accrington and Rossendale College [2001] EWCA Civ 529 supported the distinction between contractual rights supplied by the employer and non-contractual benefits or conditions supplied by the principal.
4. For the same reason, the Royal Parks had not applied the alleged minimum-pay PCP to the claimants within section 19. The relevant act was Vinci’s setting of contractual remuneration, rather than an act by the Royal Parks in the principal-worker relationship.
5. Independently, the court agreed with the Employment Appeal Tribunal that the pleaded PCP was the general policy of paying the London Living Wage to direct employees while not requiring or funding contractors generally to pay it to outsourced workers. The logical pool therefore included all affected outsourced workers, not Vinci workers alone. The claimants had produced no evidence about the ethnic composition or pay of the wider outsourced workforce, and had not sought the necessary disclosure. There was consequently no basis for remittal or a further opportunity to prove the claim.

• Court of Appeal (Civil Division): Dismissed the claimants’ appeal and upheld dismissal of the claim, allowing the respondent’s notice on the proper scope of section 41 and the absence of a PCP applied by the principal: [2024] EWCA Civ 583.
• Employment Appeal Tribunal: Allowed the Royal Parks’ appeal, set aside the Employment Tribunal’s decision, and dismissed the indirect discrimination claim. It held that the alleged PCP and comparison pool could not be confined to Vinci workers: EA-2021-001282-OO.
• Employment Tribunal, London Central: Allowed the claimants’ indirect race discrimination claim. It treated the pool as the Royal Parks’ direct employees and workers on Vinci’s toilets and cleaning contract.