Indirect Discrimination

TL;DR?No indirect discrimination when charity didn't require a contractor to pay the London Living Wage.

Did a charity indirectly discriminate against contract workers by not requiring a contractor to pay them the London Living Wage, unlike its own staff?

No, held the Court of Appeal in?Boohene v The Royal Parks Ltd, dismissing 16 Claimants’ claims.

RPL, a charity, took over the running of the Royal Parks. It paid its own employees above the recommended London Living Wage. RPL had decided not to require Vinci, a contractor, to pay its own staff - the Claimants contracted for RPL work - the London Living Wage, although this was an aspiration. The Claimants claimed indirect race discrimination by RPL, under S41?Equality Act, claiming RPL effectively determined their pay rates, and compared to RPL staff, a higher proportion of the Claimants were of BME origin.

The ET upheld the claims based on a comparison between RPL staff and the Claimants. The EAT overturned the ET; the Court of Appeal upheld the EAT’s decision but on different grounds.

The court held that the Claimants fell outside the scope of s41?Equality Act, their claims were essentially about their own terms of employment with Vinci; just as contract workers cannot bring equal pay claims by comparison with a principal’s employees. RPL had not dictated what the Claimants pay would actually be, in a ‘real-world view’, the pay rates depended on the overall contract price. Therefore, RPL had not applied a PCP to the Claimants by determining their pay, so there was no indirect discrimination.

The court also noted that the case had proceeded at ET based on comparing RPL’s staff only with Vinci’s staff, rather than staff of all contractors to RPL, which had been the pleaded case. The Claimants had therefore failed to prove a group impact on all contractors’ staff, so the claim was bound to fail.

Thanks to?Ed Mcfarlane?for preparing this case summary.