The Claimants, a group of 80 cleaners of BAME background, worked at Great Ormond Street Hospital (GOSH) for a contractor, OCS, until 1 August 2021, when cleaning services were brought in-house and they transferred to the NHS Foundation Trust (“the Trust”) responsible for GOSH. The Claimants alleged indirect race discrimination by the Trust for failing to provide Agenda for Change (AfC) pay and benefits both before and after the transfer. Pre-transfer, they were paid the London Living Wage (£10.75/hour) rather than AfC rates (£11.50/hour). Post-transfer, they were not moved immediately or shortly thereafter to AfC terms. Their claims were dismissed by the ET, relying heavily on the EAT’s decision on very similar facts in Royal Parks Ltd v Boohene [2024] IRLR 18. The ET held that it could not be established that the Trust had applied a provision, criterion or practice (“PCP”) to the Claimants as the ET had not been provided with evidence relating to the racial composition and contractual terms of other contractors to the Trust. The Claimants appealed.

The EAT allowed the appeal. The EAT considered the periods pre and post transfer and first dismissed the Claimants' appeal in respect to the pre transfer period, allowing the Respondents' cross-appeal. However, in relation to the post transfer period, the ET misdirected themselves by applying the EAT’s decision in Royal Parks in the post-transfer period. The PCP that was advanced by the Claimants in the post-transfer period (PCP(d)) was that receipt of the band 1 or 2 AfC rate of pay and other benefits for working as a cleaner at GOSH was made dependent, directly or indirectly, on not having been transferred to the Trust from an outsourced contractor employer under a relevant transfer in respect of their work as a cleaner at GOSH. This PCP did not involve a comparison with other workers who were employed by contractors to the Trust, and so further information about contractors’ employees was not required to be provided to the ET.