F Djalo v Secretary of State for Justice

A contract worker cannot use section 41 of the Equality Act 2010 to complain to a principal about the rate of pay arising under the worker’s contract with the supplier. This remains so even if the principal has influence, or an alleged contractual power, to require the supplier to increase pay. The complaint concerns the employer-worker relationship, not the principal-worker relationship.

For indirect discrimination under section 19, the same PCP must be applied by the respondent to the claimant and the comparison group. A pay disparity created by different arrangements for direct employees and contract workers is not such a PCP. Although a requirement of direct employment to access the principal’s pay may arguably be a PCP, it was not applied by the principal to the claimant.

The claimant, a Black African cleaner employed by OCS Ltd and supplied to work at Ministry of Justice premises, alleged indirect race discrimination by the Secretary of State. She was paid below the London Living Wage, unlike certain directly employed staff of the respondent.

The Central London Employment Tribunal struck out the claim as having no reasonable prospects of success. The claimant contended that clause 60.1(17) of the facilities-management contract enabled the respondent to require OCS to pay the London Living Wage, and that this distinguished Royal Parks. She also relied on the EU Race Directive, the equal-pay single-source principle, and article 14 of the ECHR.

The appeal concerned whether the claim could fall within sections 19 and 41 of the Equality Act 2010, and whether it should have proceeded to a full hearing.

1. Appeal dismissed. The Employment Tribunal correctly struck out the claim. The binding construction of section 41 in The Royal Parks Ltd v Boohene meant that a contract worker could not bring against the principal a complaint concerning remuneration payable under the worker’s contract with the supplier.

2. Section 41 is directed to discrimination in the principal-worker relationship: access to work, the workplace, and non-contractual conditions imposed by the principal. It does not cover contractual pay rights against the supplier. The alleged power of the respondent to require OCS to pay the London Living Wage would not alter the character of the complaint.

3. Clause 60.1(17) of the facilities-management contract did not confer such a power. Properly construed, it identified the Government’s introduction of a compulsory Living Wage or London Living Wage as a compensation event allowing OCS to recover resulting costs. It was not a source of additional contractual powers for the respondent. Further disclosure or factual investigation could not realistically change that conclusion.

4. In any event, the single-source argument failed. A contract worker’s pay, agreed with the supplier, could not be compared with the principal’s employees’ pay merely because the principal influenced the supplier’s funding or could potentially affect pay. The claimant could not meet the requirements derived from Lawrence and Allonby.

5. The Disparity PCP was not a valid section 19 PCP because it combined different arrangements applied to different groups. The Tribunal erred in parts of its analysis of the Access PCP and particular disadvantage, but the Access PCP was not applied to the claimant by the respondent. Amendment would therefore not save the claim.

6. The article 14 ground was permitted, including its A1P1 aspect, but failed. There was no relevant mismatch with equal-pay law, the facts were not within the ambit of article 8 or A1P1, and no less favourable treatment was established when the respective statutory schemes were considered as a whole.

• Employment Appeal Tribunal: Appeal dismissed in [2025] EAT 67. The Tribunal’s strike-out decision was upheld.
• Central London Employment Tribunal: Employment Judge Norris struck out the claimant’s indirect race discrimination claim as having no reasonable prospects of success. Reasons were sent to the parties on 26 October 2022.