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Indirect Discrimination

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Did a tribunal err in applying too narrow a pool for comparison in an indirect discrimination claim when it included all direct employees but only one group of outsourced workers?

Yes, held the EAT in Boohene and others v Royal Parks Ltd.

The Respondent had a policy of paying its directly employed staff a minimum rate of London living wage (LLW). It outsourced its cleaning services to a contractor (Vinci) after accepting a bid which was based on staff being paid lower than LLW. The Claimants, who worked for the contractor, brought claims of indirect discrimination against the Respondent, arguing that the provision, criterion or practice (PCP) of applying a lower minimum level of pay to outsourced workers compared with those who were directly employed had a disparate impact on those from black and minority ethnic (BAME) backgrounds, who were more likely to work as contractors.

The tribunal found for the Claimants. It compared those who were directly employed with those working on the outsourced cleaning contract. It found that the PCP was applied to all, that it placed those from BAME backgrounds at a particular disadvantage and that it could not be justified.

The EAT overturned this decision. It held that the tribunal had “indefensibly” narrowed the pool for comparison. The tribunal should have compared directly employed staff with all outsourced workers (and not just those on the cleaning contract). When analysing the impact of a PCP, the pool being considered should consist of the entire group it affects.