Contract workers could not claim indirect discrimination against principal in respect of low pay

Background

The Equality Act 2010 protects contract workers from discrimination carried out by the end-user of their services. The end-user is banned from discriminating against a contract worker:

• In respect of the terms on which the end-user allows the worker to do the work
• By not allowing them to work or to continue to work
• In the way the end-user allows or does not allow the contract worker to access benefits
• By subjecting the contract worker to any other detriment

In the case of Boohene and others v Royal Parks Ltd, the claimants were a group of contract workers. They were employed by Vinci Construction UK Ltd (Vinci) to provide services to Royal Parks Ltd (Royal Parks). Royal Parks is a charity responsible for the management of royal parks and other London open spaces. Royal Parks employs some 160 staff directly in predominantly office-based roles. It outsources manual work to contractors, including Vinci.

Royal Parks pays its own staff the London Living Wage (LLW), which is a rate of pay set higher than the National Minimum Wage. It invited Vinci to tender for the contract based on two alternative tenders, one to account for the provision of LLW and the other to use non-LLW rates to workers. Royal Parks accepted the non-LLW tender. After five years, the cleaning contract was renewed and Royal Parks at that point agreed to fund the cost of paying the LLW to Vinci's workers.

The claimants brought claims for indirect race discrimination against Royal Parks. The claimants were predominantly black and from other minority ethnic backgrounds. Royal Parks' own staff were predominantly white. The claimants argued that Royal Parks' practice of paying the national minimum wage for the first five years of the contract disproportionately affected workers from black and minority ethnic backgrounds.

Tribunal decision and appeal

In the first instance, the Tribunal upheld the claimants' claims. It found that the pay practice disproportionately disadvantaged black and minority ethnic workers and that it could not be justified as a proportionate means of achieving a legitimate aim.

Royal Parks appealed successfully to the Employment Appeal Tribunal (EAT). The EAT found that the contract between Vinci and the claimants fell outside the scope of the contract worker protection provisions of the Equality Act such that the protection was not engaged. The EAT also found that in any event, the Tribunal had erred in treating the minimum wage pay practice as applying only to the claimants, and the question of disadvantage should have been considered against the impact of the practice across all contractors. The claimants appealed to the Court of Appeal.

Court of Appeal judgment

The Court of Appeal dismissed the appeal. The interesting aspect of the judgment is in respect of the scope of protection afforded under the Equality Act to contract workers. The Court of Appeal focused on the wording of section 41(1) Equality Act, which provides that it is unlawful to discriminate in respect of the "terms on which the principal allows the worker to do the work" (our emphasis). The natural reading of this provision is that the protection is engaged where a principal imposes a stipulation as a condition of the worker being allowed to do the work. The provision does not apply to a stipulation imposed by the principal on the worker's employer. The conduct of Royal Parks that was in issue was its failure to require Vinci to pay the London Living Wage. This conduct fell outside the scope of the statutory protection afforded under the Equality Act.

Learning points

This is an interesting decision about the scope of protection afforded to contract workers under the relevant provisions of the Equality Act, in particular in respect of what it means for an end-user to 'allow' a contract worker to work on certain terms.

For more information or advice, please contact Sharmin Chowdhury in our Employment team on 01923 919 373, or complete the form below.