The Question
In the recent case of Boohene and Ors v Royal Parks Ltd, was there a breach of section 41 of the Equality Act 2010 – which prohibits discrimination by a principal against contract workers?
The Answer
The issue of indirect discrimination was considered in Boohene and Ors v Royal Parks Ltd. In this case, the claimants were engaged by the contractor on an outsourced maintenance contract with Royal Parks. Royal Parks contractually paid their own employees the London Living Wage, however the contractor did not contractually pay its own employees the London Living Wage. The claimants who were mostly from minority ethnic groups issued an indirect race discrimination claims against Royal Parks.
The Employment Appeal Tribunal upheld their claims under Section 41 of the Equality Act 2010. This section prohibits discrimination against contract workers, but it did not extend to issues relating to payment in the contractor’s contract. The Employment Appeal Tribunal reasoned that Royal Parks had actively chosen to give less favourable terms by selecting a contractor who did not pay the London Living Wage.
The Court of Appeal disagreed and overturned the decision by the Employment Appeal Tribunal.
Their decision was that contract workers provided by a third-party contractor cannot bring a discrimination claim against the end-user under Section 41. The reason for this was due to the alleged discrimination being connected to the payment in their employment contracts and not connected to the relationship between Royal Parks and the claimants. As such, any claim had to be directed by the employees to their own employer.
The Court of Appeal therefore allowed the appeal by Royal Parks.
The Risk/Threat
The risk to the employer is an action based on director or indirect discrimination. Discrimination claims have no ceiling on the level of damages that can be awarded.
What You Need To Do
The risk to the employer is an action based on director or indirect discrimination. Discrimination claims have no ceiling on the level of damages that can be awarded. If you need any further help, please do not hesitate to contact our HR/Legal advice line team at 01455 852 028.
