The Royal Parks Ltd (defendant/respondent) v Boohene and ors (claimants/appellants)

Tuesday 20 – Wednesday 21 February 2024

By Appellant’s Notice filed on 25 May 2023, the Claimants appeal against the order of the Employment Appeal Tribunal (EAT) sealed on 5 May 2023 allowing an appeal by The Royal Parks Ltd and setting aside the decision of the Employment Tribunal (ET) and substituting for it a decision that the claims of indirect race discrimination be dismissed.

The Claimants are 16 cleaners employed at relevant time by Vinci Construction UK Ltd to service a cleaning contract with R.

The issue is whether under section 41 Equality Act 2010 workers employed by third -party contractors could rely on the principal’s own employees as comparators for the purposes of their claims of indirect race discrimination in relation to minimum rates of pay.

The ET had upheld the claim for indirect race discrimination. The Claimants submit that the case raises important questions regarding the correct frame or parameters for comparison when assessing whether a PCP had a disparate impact on a particular group. The case involved a group that includes a mixture of direct employees and outsourced subcontracted workers.

Both the ET and EAT agreed that this was permissible in principle but differed on the issue of whether the pool should include some outsourced workers only (as found by the ET) or all outsourced workers on all contracts (as found by the EAT).

The Cs submits that the ET approach was the correct one and that EAT erred as the decision led to an abstract and over-inclusive pool. The EAT decision imposes a disproportionate burden on the Cs by requiring them to prove matters beyond their pleaded case.

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Day 1

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Day 2

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