The Royal Parks Ltd v G Boohene & Ors
[2023] EAT 69
Geneviv Boohene & Ors v The Royal Parks Ltd
24 May 2024
[2024] EWCA Civ 583
Court of Appeal
A group of mainly Black workers claimed their employer discriminated against them by not paying them a living wage. A lower court got it wrong by only looking at part of the picture. The higher court corrected the mistake, saying the workers hadn't proven discrimination because they hadn't shown that the whole group of outsourced workers was treated unfairly compared to directly employed workers.
Key Facts
- •Sixteen contract workers (Claimants) of Royal Parks Ltd (RPL) claimed indirect racial discrimination due to non-payment of the London Living Wage (LLW).
- •Claimants, mostly of Black or minority ethnic origin, worked under a contract with Vinci Construction UK Ltd for cleaning services.
- •RPL, managing Royal Parks, outsourced manual work while directly employing mainly office staff (predominantly white).
- •RPL's policy was not to mandate LLW payment by contractors due to affordability concerns; the Vinci contract was not priced to include LLW.
- •After union pressure and threat of industrial action, RPL decided to mandate LLW payment by all contractors by April 2023.
- •The Employment Tribunal (ET) ruled in favor of Claimants, using a 'Vinci-only pool' for comparison.
- •The Employment Appeal Tribunal (EAT) overturned the ET's decision, stating the ET wrongly defined the pool for comparison.
Legal Principles
Indirect discrimination under section 19 of the Equality Act 2010 requires identifying a provision, criterion, or practice (PCP) and a comparison pool.
Equality Act 2010, section 19
The comparison pool should include all workers affected by the PCP, both positively and negatively.
Essop v Home Office (UK Border Agency) [2017] UKSC 27
Section 41 of the Equality Act 2010 protects contract workers from discrimination by a principal, focusing on the principal-worker relationship, not the worker's contract with their employer.
Equality Act 2010, section 41
A principal's conduct can fall under section 41(1) if they effectively dictate the terms under which a contractor employs a worker.
Allonby v Accrington and Rossendale College [2001] EWCA Civ 529
In indirect discrimination cases, the circumstances of compared groups must not materially differ (section 23).
Equality Act 2010, section 23
Outcomes
The Court of Appeal dismissed the Claimants' appeal.
The ET incorrectly defined the comparison pool, limiting it to Vinci employees and RPL's direct employees, rather than all RPL's directly and indirectly employed staff as pleaded. The Claimants failed to provide evidence of disparate impact on the correct, broader pool.
The Court of Appeal allowed the Respondent's Notice.
RPL's failure to require LLW payment from contractors did not fall within section 41(1) of the Equality Act 2010 because it didn't directly dictate the terms of employment. The Claimants' complaint concerned terms of their contract with Vinci, not the principal-worker relationship.