The Claimant is employed by OCS Limited (“OCS”), a private company that provides facilities management services to the Ministry of Justice (“MOJ”), pursuant to an agreement with the Respondent (“the FM Contract”). The Claimant has worked as a cleaner at the MOJ’s Petty France site since 2009. She does not have a contractual relationship with the Respondent. She alleged that the Respondent indirectly discriminated against her by denying her a level of pay accorded to the Respondent’s comparable directly employed staff and that workers in her position were disproportionately black or other minority ethnicity (“BME”). She contended that the respondent had a contractual power to require OCS, her employer, to uplift her pay to the London Living Wage (“LLW”), by virtue of clause 60.1(17) in the FM Contract. She argued that the Respondent had applied a provision, criterion or practice (“PCP”) of according different levels of pay to direct employees and to contract workers under the FM Contract and/or had required workers to be directly employed in order to be remunerated in accordance with the Respondent’s pay scale and that this had caused group disadvantage for BME workers in the Claimant’s position. The ET struck out the claim on the basis that sections 19 and 41 of the Equality Act 2010 (“EqA”) do not protect the Claimant contract worker against differences between her level of pay and that paid by the principal to its own employees. The Claimant appealed.

The EAT dismissed the appeal. The EAT decided that the ET was correct to conclude that the claim could not come within section 41 EqA. Even if clause 60.1(17) of the FM contract conferred the alleged contractual power on the respondent, Underhill LJ’s reasoning in Royal Parks indicated that this does not afford a material point of distinction. Additionally, there was no realistic prospect of the Claimant establishing that clause 60.1(17) conferred the alleged contractual power on the Respondent or of a different conclusion on this being reached if the claim was permitted to proceed to a full hearing. In the circumstances, the Claimant’s reliance upon the single source principle did not avail her and it was unnecessary to decide whether this principle can be relied upon beyond the equal pay context. Furthermore, the Claimant had no realistic prospect of meeting the section 19 EqA requirements for a claim of indirect discrimination. The Claimant’s first formulation was incapable of amounting to a proper PCP and, as in Royal Parks, the second formulation did not enable her to show that the PCP was applied to her by the Respondent. Accordingly, although there were some errors in the reasoning below, these were immaterial as the ET was correct in also concluding that the claim could not come within section 19. As the claim was in any event bound to fail the ET was not required to give the claimant a further opportunity to amend the claim. The EAT also rejected the Claimant’s argument that the Royal Parks construction of section 41 EqA renders the United Kingdom’s system of protection against race discrimination as regards the pay of contract workers non-compliant with article 14 of the European Convention on Human Rights on the basis that in instances of sex discrimination, the contract worker would be able to compare their pay with the principal’s own employees via an equal pay claim and the application of the single source principle. The Court of Appeal in Royal Parks proceeded on the basis that the court’s construction of section 41 was consistent with the single source principle. In any event, the claimed article 14 discrimination was not “within the ambit” of article 8 or article 1 of Protocol 1; and the Steer v Stormsure Ltd [2021] EWCA Civ 887, [2021] ICR 1671 “package principle” applied.