Alpha Anne and Ors v Great Ormond Street Hospital for Children NHS Foundation Trust

A contract worker cannot use section 41 of the Equality Act 2010 to complain against a principal about pay fixed under the worker’s contract with the supplier. This remains so where the principal could have required higher pay, unless the principal positively prohibited it.

After a TUPE transfer, however, the transferee is the employer. A PCP which makes Agenda for Change pay conditional on not having transferred from an outsourced contractor may be assessed by comparing the transferred employees with the transferee’s own relevant employees. Evidence about other contractors is unnecessary. A contractual power to vary transferred terms may also defeat reliance on the statutory prohibition on transfer-related variations as objective justification.

Eighty cleaners, predominantly from BAME backgrounds, transferred on 1 August 2021 from OCS to the respondent NHS trust when cleaning services were brought in-house. They alleged indirect race discrimination arising from their non-receipt of Agenda for Change pay and benefits before and after transfer.

The Employment Tribunal dismissed the claims. It considered itself constrained by the EAT decision in The Royal Parks Ltd v Boohene [2024] IRLR 18 to require evidence about all contractor workforces. After the appeal began, the Court of Appeal gave judgment in Boohene v Royal Parks Ltd [2024] ICR 1036. The trust cross-appealed, principally on the scope of section 41 of the Equality Act 2010 and TUPE.

1. Appeal allowed in part. The pre-transfer claims remained dismissed. The trust’s cross-appeal succeeded on the section 41 issue. Under the binding decision in Boohene v Royal Parks Ltd [2024] ICR 1036, section 41 does not cover a contract worker’s complaint about remuneration payable under the employment contract with the supplier. The complaint concerns the employer-worker relationship, not the principal-worker relationship. The trust had not positively prohibited OCS from paying Agenda for Change rates.

2. The claimants’ arguments that Royal Parks was per incuriam failed. Fletcher and Blackwood concerned vocational training, not section 41 or contract working. The relevant observation in Blackwood was not part of its ratio. The single-source argument was also inconsistent with Allonby.

3. Post-transfer period. Section 41 and the contract-worker analysis did not apply once the claimants became employees of the trust. By regulation 4(1) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, their contracts were treated as originally made with the trust.

4. The Tribunal erred by applying the all-contractors analysis to PCP(d). That PCP concerned transferred cleaners and compared them with relevant employees of the trust on Agenda for Change terms. The Tribunal’s own findings established the PCP, group and individual disadvantage, and a prima facie case: 78% of domestic staff were BAME, compared with 51% of band 2 staff.

5. The Tribunal erred about regulations 4(4) and 4(5)(a) of TUPE. An ETO reason must entail changes in the workforce. The errors were immaterial because regulation 4(5)(b) applied: the transferred contracts contained an express power to make reasonable variations, which permitted Agenda for Change terms from, or shortly after, transfer. The trust had no objective justification for its delay. The dismissal of the post-transfer PCP(d) claim was quashed and substituted with a finding that it succeeded. No remission was required.

• Employment Appeal Tribunal: appeal allowed in part; the Tribunal’s dismissal of the post-transfer PCP(d) claim was quashed and substituted with a finding that it succeeded.
• Employment Tribunal, London Central: judgment promulgated on 15 February 2024 dismissing the indirect race discrimination claims. No citation was stated.