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Legal case

Can contract workers claim indirect discrimination against a principal whom they were working for?

This was considered by the Court of Appeal (CoA) in the case of Boohene and ors v Royal Parks Ltd.

The Facts

The Claimants were 16 contract workers, employed by Vinci Ltd. They undertook cleaning and maintenance for the Respondent, Royal Parks Ltd, who engaged both directly employed staff and workers outsourced from Vinci Ltd. All but one of the workers at Vinci Ltd were of black and minority ethnic (BME) origin.

The Respondent, responsible for running the Royal Parks, paid its employed staff the London Living Wage (LLW), which is a level of pay higher than the national minimum wage. Under a renewed tender with Vinci Ltd, the Respondent accepted that it would not pay their workers LLW rates, but could revisit this at any point during the contract period. This was consistent with the Respondent’s outsourcing policy at the time, which recognised the financial restraints of the organisation.

The Claimants claimed that the Respondent’s policy of not paying the LLW to contractors was a policy, provision or practice (PCP) and was indirectly discriminatory. This was because it had a detrimental impact on those from black and ethnic minority backgrounds who were more likely to work for contractors.

The Legal Bit

Section 41 of the Equality Act 2010 provides:

(1) A principal must not discriminate against a contract worker—

(a) as to the terms on which the principal allows the worker to do the work;
(b) by not allowing the worker to do, or to continue to do, the work;
(c) in the way the principal affords the worker access, or by not affording the worker access, to opportunities for receiving a benefit, facility or service;
(d) by subjecting the worker to any other detriment.

(5) A “principal” is a person who makes work available for an individual who is—

(a) employed by another person, and
(b) supplied by that other person in furtherance of a contract to which the principal is a party (whether or not that other person is a party to it).


(7) A “contract worker” is an individual supplied to a principal in furtherance of a contract such as is mentioned in subsection (5)(b). Section 19 of the EA provides

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2) A cannot show it to be a proportionate means of achieving a legitimate aim.

When identifying the pool of individuals affected by the PCP, section 23(1) requires that there must be no material difference between the circumstances relating to each case.

Claims in the Employment Tribunal (ET)

The Claimants claimed that the Respondent’s PCP of failing to pay the Claimants the LLW was indirect race discrimination. The Claimants also claimed that the Respondent was not able to establish a justification for the payment disparity.

The ET agreed that the PCP placed BME workers at a disadvantage and that the Respondent’s decision not to pay contract workers the LLW was not justified. The claim was therefore upheld.

Appeal at the Employment Appeal Tribunal (EAT)

The Respondent appealed the decision. The EAT overturned the ET’s decision and found that there was no indirect discrimination. This was because the PCP and the pool should properly apply to all of the Respondent’s employees and all contract workers not just those on the Vinci Ltd contract. There was no evidence provided about the racial make up of the Respondent’s work force and therefore the EAT held that the claim therefore should be dismissed for insufficient evidence as to the detrimental impact of the PCP on the entire workforce.

Court of Appeal (CoA) Decision

The Claimants appealed to the CoA. The CoA upheld the EAT’s finding. It also considered whether the claim fell withing the scope of section 41 of the EA in terms of the rights and protection of workers. The CoA held that the section was not concerned with detriments which were the result of terms of the worker’s contract of employment but only with detriments imposed by the principal. Section 41 of the EA does not provide a route for workers to dispute the contents of their contractual terms set by their own employer, in this case Vinci Ltd, or to seek parity of terms with persons employed by the principal. There would be an exception if the principal dictates the terms on which a contractor employs their contract workers, as this would then effectively fall within the meaning of section 41(1)(a).

Implications for Future Claims

This case highlights the importance for individuals to correctly identify both the relevant PCP and the pool of people against which the effects of the PCP should be compared. It also serves as a reminder of the different protections available for employees and workers, who may choose to be directly employed with an organisation or operate more flexibly by undertaking agency work. Whilst the two ‘pools’ of people are both protected under the Equality Act 2010, terms of payment are not necessarily comparable depending on who dictates the rates of pay. Employers should, however, keep in mind how much control is exercised on their agency staff in relation to their terms of work, and whether any PCP could indirectly be detrimental to those with a protected characteristics, as this will have significant implications on their obligations under the Equality Act 2010 not to discriminate.

For support on dealing with cases of indirect discrimination, please get in touch with our expert employment law solicitors.