F Djalo v Secretary of State for Justice [2025] EAT 67

“6.1 A practice or policy as to pay (salary or hourly rate) conferred on the Respondent’s directly employed staff under their terms and conditions of employment, and as to those conferred on contract workers employed in the performance of the Contract, and the disparity between the two sets of terms. 6.2 A requirement that for a worker to have or to access the contractual benefits described at paragraph 6.1 above, that worker must be directly employed by the Respondent.”

“A requirement that for a worker to access the level of pay conferred on the Respondent’s directly employed staff, that they must be directly employed by the Respondent.”

“…groups with those protected characteristics are less likely to enjoy the contractual benefits which the Respondent’s directly employed staff enjoy, by virtue of their tendency to occupy positions as contract workers rather than directly employed staff. In particular, the Claimant contends that she suffers a disadvantage in that she has enjoyed inferior terms in respect of salary or hourly rate.”

“…all Administrative Officer / Administrative Assistant grade staff (or alternatively Band E and/or Band F staff), and all contract workers deployed to service the Contract. All of those staff would be in materially the same circumstances, in that the Respondent is responsible for their pay and could establish equal treatment across the pool, as described at paragraph 7 above.”

“The Claimant has been put at the relevant disadvantage in that she has been employed on statutory minimum (or close to statutory minimum in relation to hourly rate of pay) and excluded from the contractual benefits as to salary or hourly rate of pay enjoyed by the Respondent’s direct employees.”

“…The Respondent denies applying any such PCP. The Respondent does not confer any contractual benefits on contract workers providing services under the Contract because the Respondent is not the employer of such workers nor is the Respondent privy to any contract with such workers. The Respondent’s failure to confer such contractual benefits on such contract workers is not a policy or practice applied to them by the Respondent but a practical reality of the fact that responsibility for conferring such contractual benefits lies with their employer, OCS. …It is correct that the Respondent only confers such benefits on its own employees, just as OCS would only confer such benefits on its own employees including the Claimant. However, that practice does not restrict contract workers accessing such benefits (their own employer’s equivalent) through their own employer, OCS.” (Emphasis in original.)

“It is denied that the Respondent has a policy, or term in the Contract, which determined or significantly influenced the contractual benefits enjoyed by the employees of the FM service providers. It is averred that the Contract did no more than refer to the base standard of terms and conditions which would otherwise be required by legislation including the National Minimum Wage Act 1998 and TUPE and required bidders to provide information on employment costs to support ongoing contract change management. Over and above such requirements, the exact contractual terms of any contract worker providing cleaning services at MoJ office buildings is a matter for each FM provider. In the Claimant’s case her terms and conditions would have been governed by any contract of employment she had with OCS and may also have been historically affected by any previous TUPE transfer to which she was subject. Regarding paragraph 7, it is admitted that the overall contract price would have been costed and agreed on the basis of assumptions about terms and conditions that contract workers who had transferred pursuant to TUPE would enjoy. However, it is denied that this amounts to a policy of ‘conferring contractual benefits’ on the contract workers…Contractual benefits were ultimately governed by any contract of employment the Claimant had with OCS, and/or by any TUPE terms, and were thus conferred by OCS as the employer and not the Respondent.”

“If and to the extent the Respondent has designated a site as a London Living Wage (LLW) site, then the Respondent is ordered to disclose any and all associated documentation with that designation.”

“The Respondent wishes to confirm that it has not directed OCS to treat any site as a LLW site, nor has it designated any site as such. The Respondent wishes to confirm that any of its sites paying LLW does so only because of legacy arrangements.”

“(3) The Employer does not provide the right of access to the Affected Property in accordance with the Accepted Plan. (4) The Service Manager gives an instruction to stop or not to start any work. (5) The Employer or Others do not work in accordance with the Accepted Plan or within the conditions stated in the Service Information. (6) The Service Manager does not reply to a communication from the Contractor within the period required by this contract. (7) The Service Manager changes a decision which he has previously communicated to the Contractor.” (Emphasis in original.)

“(15) Any changes to the minimum hourly rate of pay set by the Government which applies to workers. (16) Any change to the rate of employer’s National Insurance. (17) Any introduction of a compulsory Living Wage or London Living Wage or any change thereto which applies to workers.” (16) Any change to the rate of employer’s National Insurance. (17) Any introduction of a compulsory Living Wage or London Living Wage or any change thereto which applies to workers.”

“30. I accept the Respondent’s submission that neither the Contract itself nor the “Price List” stipulate the amount that the Claimant is to be paid. The Price List gives the generic (minimum) rate per hour of Cleaning Operatives; it gives the total price that the Respondent has to pay its contractor at the date the Contract is entered, subject to revision if the increases envisaged therein come about. 31. It is a matter for OCS if it wishes to pay those Operatives at a higher rate and thus make less profit from the Contract. The only mandatory requirement from the Respondent is that OCS shall not breach minimum wage legislation nor act in a way that would breach TUPE, i.e. that OCS shall comply with its legal obligations as regards labour law. 32. I do not accept Mr O’Keeffe’s submission as to subclauses (15) and (17)… As I understand it, he contends that they are essentially tautologous unless one reads the words “by the employer” into subclause (17) after “Any introduction”, given that in subclause (15) the words “set by the Government” appear. I disagree that that would be a necessary gloss for the subclauses to read something different from each other. For instance, one does not need to read “by the Government” into subclause (16) because it is inevitably the Government that sets the rate of employer’s NI contributions. I consider that the same is true of subclause (17). It is always in an employer’s discretion whether it pays the (London) Living Wage at present, provided it pays above the NMW. Were the Government to make a (London) Living Wage compulsory, that would be a Compensation Event because OCS would have no option but to implement that rise, and it would be permitted by this clause to pass on the additional cost to the Respondent. The clauses already make sense and are not duplicative of each other without additional wording.”

“That is not the same thing as saying that it is the Respondent who has designated sites as LLW sites or not. As I have found above, OCS “inherited” the pay rates from Amey, and they from Lancaster. OCS had no choice about whether to pay LLW rates at those designated sites; TUPE (and not the Respondent) requires it so to do. OCS is not required by TUPE or by the Respondent to pay the LLW at sites which are not designated as such.”

“In similar vein in this case, if the fact that only employees who work for the Respondent are entitled to be paid pursuant to its contractual terms can be said to be a PCP, that would potentially discriminate against the whole innominate class of those whose work is carried out on the Respondent’s premises via a contractor (or possibly an even wider pool, namely all those in the UK who carry out work as cleaning operatives and who do not work directly for the Respondent). One might also, in that case, ask why the Claimant would have removed from the terms of the PCP other benefits that are paid to the Respondent’s directly employed employees such as sick and maternity pay and employer pension contributions. I conclude it is because if the point is thus stretched, its inherent unsuitability as an argument becomes even more apparent.”

“The Respondent needs to know from what point on the pay scale its contractor is starting so that it can assess, when there has been a CE, both whether the claim by that contractor for additional payment is permissible and, if it is, the additional amount to be paid. As Mr Kirk submits however, the employees’ wages themselves are the realm of the employer and not the client. The Respondent has no “practice” or “policy” as to the wages paid to OCS’s employees.”

“The Respondent here is not involved in negotiating the pay or conditions on which OCS’s employees are employed – even those who work on the Respondent’s premises, and manifestly not those who work for other clients of OCS - and nor is its approval required for any pay rise which OCS may agree with those employees. If the Crown is not considered a “single source” even for the pay of all civil servants whom it actually employs, it is impossible to see how it could be held responsible for the pay of those whom it does not employ.”

“Instead, it is OCS (by reference to the terms and conditions on which its employees transferred into its employment) which is responsible for any unequal treatment between its employees and those of the Respondent, and OCS that is ultimately for restoring equality if it chose to do so. Otherwise, as Mr Kirk submits, the Respondent would be in the invidious position of having to be responsible for the pay of its contactors’ employees, without any right to participate in the negotiations in relation thereto (or alternatively, OCS would have no right to determine the pay of its own employees and would instead be dictated to by each of its hundreds or even thousands of clients as to the terms on which it employed them). The Government has chosen not to implement a London Living Wage. It is not the responsibility of a client to impose such a wage on its contractors; I accept the Respondent’s submission that to find otherwise would be to ignore the commercial reality of outsourcing arrangements generally.”

“As to the Claimant’s arguments on contract workers under section 41 EqA, these are also unsustainable on closer inspection. The Respondent correctly observes that the Respondent does not discriminate against the Claimant as to the terms on which it “allows” the Claimant to do the work, nor does it afford (or not afford) her access to benefits, facilities or services and nor does it subject her to any other detriment. It imposes no requirement on OCS of the nature suggested by Mr O’Keeffe such as the offering of a bonus only to those who speak (perfect) English. It only requires OCS to do the legal minimum in terms of pay. Even if there is a different racial balance in the workers who work for OCS at LLW designated sites and hence receive the LLW and those who work at 102 Petty France and other NMW only sites (as to which there was no evidence before me), I come back once more to the simple fact that it is not the Respondent but the Claimant’s contract with OCS that dictates where the Claimant works or how much she earns.”

“3. Petty France is one site amongst 191 sites, which collectively are covered under a commercial contract with the Ministry of Justice… 4. Petty France is one of 9 head office buildings based in Westminster that employ 362 total staff. The 9 sites are Whitehall (2xBuildings), QEII, 102 Petty France, Wales Office, Sanctuary Building, Tottenham Court Road, Attorney General Office, Clive House with Admiralty Building joining towards the end of 2018 which will total 10 sites… 5. The terms and conditions on each site vary as each site was previously managed by a number of outsourced facilities management providers and came under the newly formed Facilities Directorate formed January 2019 therefore OCS honour the terms as protected under TUPE regulations.”

“The contracts that we have in place with OCS (and with all of our providers across the MoJ) do not have a specific requirement to pay the London Living Wage. As a department we currently require, as a minimum, that providers meet their statutory obligations of paying the Minimum Wage (for 21 – 25 year olds) and the National Living Wage (for 25+). Suppliers can then determine whether they chose to pay the voluntary London Living Wage (in London) or Real Living Wage (outside London) … If as a department, we chose to establish a policy and mandate the LLW and RLW we could do so by making ‘changes’ to all of our existing contracts. This would require us to identify every contract where people are paid the MW or NLW, write to each supplier, obtain a quote to increase, negotiate a sum and implement. This is a substantial piece of work but is entirely possible if the department choses to take that position…”

“I am pleased to confirm that all Department of Education’s staff and agency workers are now paid above the living wage, and that from 1 December 2015, all facilities management contractors working in my Department will also be paid at least living wage rates.”

“We do not pay the London Living Wage on the MoJ account, however in certain buildings the client wants us to pay the equivalent rate to the London Living Wage. In Sanctuary Building we have been pleased to process the increase to £11.95 per hour effective from 1st April 2023, which is OCS’s pay review date…There is no obligation on any employer to pay these rates, it is encouraged but is entirely voluntary…To re-iterate, OCS is not a Living Wage Employer and therefore not tied to any recommendation made by the Living Wage Foundation.”

“The ET erred in finding that the SMI Email did not fall within the scope of the order for disclosure. No reasons were given for that conclusion, which was not Meek compliant. If correct, it in any event indicated that the disclosure so ordered did not embrace disclosure on matters relevant to R’s responsibility for pay rates and power to equalise pay. The ET erred in finding that the SMI Email, and further disclosure, was not relevant or necessary. That conclusion was not Meek compliant, no reasons having been given for it, and was perverse.”

“There was evidence of “designated LLW sites” and that these had been subject to Compensation Event notifications (ET Reasons §§29). The ET erred in finding (at ET Reasons §36) that in so far as LLW was paid at some sites, this arose from pay rates inherited under TUPE rather than designation of any sites as LLW by R. It was not open to the ET to make such a finding on a strike out application, before full disclosure and testing the evidence, and without addressing the apparent inconsistency with the SMI Email and that workers were paid LLW who did not transfer from an LLW site. Further, C relies on a letter from OCS of 16 May 2023 stating that the LLW was paid at a site (Sanctuary Building) because R wanted OCS to do so.”

“The ET reached a perverse conclusion and/or took into account irrelevant considerations or failed to take into account relevant considerations in finding that it was not reasonably arguable that paragraph 60.1(17) of the Contract encompassed a power for R to make payment of at least a Living Wage or LLW compulsory, or compulsory for a particular site (such that R had power to correct inequality at least up to that level). As to this: (a) On the ET’s construction paragraph 60.1(17) was surplusage; it added nothing to paragraph 60.1(15). (b) Contrary to the ET’s approach, the construction advanced by C did not require reading in the words “by the employer” (or “by the Service Manager” or “by the client”). The subparagraph left open by whom the obligation to pay the LLW could be introduced. (c) The requirement of being “compulsory” was consistent with entailing that OCS was required to implement it, whether by direction of R or the Government, such that the additional cost would be borne by R. (d) Full disclosure, and testing of oral evidence, was material for an assessment of the context, any shared understanding of the parties and how clause 60.1(17) operated in practice. If 60.1(17) did not provide the contractual basis for an SMI such as set out in the SMI Email, it was necessary to consider what the basis was for the instruction in that email and for treating an uplift in the LLW as a Compensation Event. That would require considering whether the power could be derived from elsewhere in paragraph 60.1.”

“It was sufficient that R had the power to mandate changes in terms irrespective of whether that power was exercised (Asda Stores v Brierley [2019] ICR 1118 (CA)…Further it was relevant to have regard to the position in practice. There was documentation showing that R had considered “mandating” payment of a LLW (report of August 2018) and further material (referred to at ET Reasons §46) referring to the need for client consent on uplifting pay to LLW. It was not permissible on a strike out application to make findings to the effect this did not in practice reflect a power to require changes in pay. The fact relied upon by the ET (at Reasons §46) that R stated this was a decision for the contractor, was consistent with a practice of declining to exercise a power to require pay changes, consistent with the asserted PCP. The finding (ET Reasons §52) that R was not involved in negotiating the pay and conditions of OCS’s employees was in issue and not capable of being determined against C on a strike out application. Further, the ET took into account an irrelevant consideration in that R was not involved in negotiating the pay of those working for other clients, which had no bearing on the issue as to whether there was indirect discrimination in the rate of pay in working for R. It was perverse not to accept that it was reasonably arguable that R had sufficient responsibility for pay, or that this required considering after full disclosure and testing of evidence, by virtue of an arguable case as to: (a) R having contracted with C’s employer as to the minimum rate of pay for C (and the other Contract Workers), and the maximum that R would be liable for absent a Compensation Event (ET Reasons §30), and/or (b) R having the contractual power, or being able in practice, to set revised minimum rates of pay or to impose the LLW, whether during the Contract or upon setting the terms on which it was prepared to enter into it or upon re-tendering; and/or (c) R having “repeatedly considered” uplifting the pay of Cleaning Operative Contract Workers at their own expense (as found at §56) and mandating that this be done or giving a “greenlight” to the increase (at §46).”

“The ET failed to have regard to the substance of the PCPs relied upon by C that the practice of the Respondent (“R”) was (in general) that it did not require or procure that those staff working for it via a contractor (“Contract Workers”), or doing so pursuant to the contract with OCS (“the Contract”), were paid for such work at rates not less than those applicable to comparable directly employed workers. In substance, in relation to C this entailed the practice of not requiring or procuring payment in accordance with the lowest band (Band F). The ET erred in concluding that C’s first formulation of the PCP, referring to the disparity between the terms applicable to directly contracted employees of R and Contract Workers, amounted to two different PCPs and was impermissible. This failed to focus on the substance of the allegation relating to the practice of differentiation between R’s directly contracted employees and Contract Workers as to rates of pay applied or required to be applied when working for R. In any event, the combined effect of two PCPs, or two aspects of a PCP, could give rise to indirect discrimination. The ET erred in finding the effect of the PCP was to involve a comparison with “the innominate class of those whose work is carried out on the Respondent’s premises via a contractor” and that this rendered the PCP impermissible. The correct comparison was between those directly employed by R and Contract Workers (or those in comparable work) in relation to whom R was a ‘single source’ in the sense of R having a sufficient responsibility for pay and power to remove or reduce the pay disparity. Alternatively, if the comparison was with those who worked for R without being directly employed by R, or those who did so where R had a power to uplift pay as a single source, that did not make the PCP invalid rather than impacting on the evidence material to establishing disparate impact.”

“The ET’s emphasis that R had not imposed on workers such as C any terms as to pay or conditions did not address the PCPs relied upon or their substance: R’s practice was not to require that Contract Workers were paid in accordance with its pay bands (or minimum pay band). The ET failed to direct itself or overlooked that a practice can consist of an omission (in this case not applying its pay bands or its minimum pay band to Contract Workers and/or declining to adopt a policy as to the rate of pay or minimum rates of pay to be paid to Contract Workers). The issue of whether the practice was applied was fact-sensitive and not appropriate for a strike out application (as to which reliance is placed on Ground 1 above). The ET misdirected itself in relying upon [Iteshi], which concerned a previous iteration of the legislation which required that a claimant could not comply with a requirement or condition. A PCP may be applied indirectly via a contractor.”

“Further or alternatively, the test of what had been “allowed” by R for the purposes of s.41(1)(a) EqA, and whether R (and not merely the contractor) had subjected C to the alleged detriment, is not to be construed more narrowly than the test for a single source. In any event, this required a fact-sensitive approach, which was not appropriate for a strike out application, having regard to the degree of involvement and control in relation to rates of pay, and the real-world impact of R’s decisions, assessing whether R had sufficient responsibility for the relevant terms and whether R was capable of correcting or reducing the inequality. The ET erred in failing to so direct itself, and R relies on the matters set out in Grounds 1 and 7. Dicta in Allonby v Accrington & Rossendale College [2001] 364 (per Sedley LJ (at [35, 36]) and Gage J (at [74]), that the predecessor of s.41 EqA relating to sex discrimination did not cover contractual terms, were distinguishable. They concerned sex discrimination (where discrimination as to terms is separately addressed) and they were on the premise that the contractor alone set the terms of employment of contract workers, which in turn raises the fact-sensitive issues addressed in Grounds 1 and 7.”

“The ET erred in the respects set out under Ground 1 and in the following respects in finding that C could not satisfy the ‘single source’ test (pursuant to which, or by analogy with which, where satisfied, so as to comply with Directive 2000/43/EC which proscribes discrimination on grounds of race, and the general EU principle of equality, either by way of direct application to R and/or by way of interpretation of the EqA, C must be permitted to compare herself with workers carrying out comparable work who were not in the same employment) and in any event that there could not be a comparison with workers directly contracted with R: The ET erred in excluding a comparison between workers directly contracted by R and Contract Workers irrespective of comparability of the work carried out for R. The ET failed to set out a correct self-direction of the single source test and/or the correct approach to s.41(1) EqA and whether the PCPs were applied to C in that, applying or by analogy with the approach adopted in equal pay cases, and/or the principles underlying those authorities and in any event: (a) The test would be satisfied and/or s.41(1)(a) and/or 41(1)(d) would be capable of applying if (i) R had a sufficient responsibility for the relevant terms (being those terms subject to the complaint of inequality) of both groups of workers being compared; and (ii) R was capable of correcting the inequality or reducing it. (b) These factors require a fact-sensitive evaluation of all the evidence. (c) It would be sufficient if R was responsible for part of and had the power to partially correct the inequality (such as by imposing minimum pay rates), in which case it would be that part of the disparity of treatment which, if it had an indirectly discriminatory effect, would require justification. The ET misdirected itself as to the effect of the decision in [Robertson]…Robertson turned on the statutory delegation of power to set pay ([Asda] at [110, 111]. The ET misdirected itself in so far as it proceeded on the basis that there could not be a comparison with employees of a different employer outside of the three categories identified by the Advocate General in Lawrence (ET Reasons at [51]), and failed to treat these as examples only of where there might be a single source or where there could be a comparison.”

“The Tribunal erred in not dealing with the ECHR argument and in any event in failing to effect that construction pursuant to s.3 of the Human Rights Act 1998, in that: The facts of the case came within the ambit of Art. 8 ECHR, as discrimination in pay related to a protected characteristic is capable of having a serious impact on the feelings of self-worth and self-confidence of members of the group treated less favourably and as such to impact on the private lives of the group. That is particularly so in relation to minimum rates of pay or payment of a living wage, and which are capable of having profound consequences for opportunities to establish and develop relationships with others. Accordingly, the legislation prohibiting such discrimination had a sufficient connection with Article 8 as to fall within its ambit. The facts of the case came within the ambit of A1P1 in that: (a) Where a State creates rights under domestic law which falls within the ambit of a Convention article, it must do so in a non-discriminatory manner. (b) The right under the Equality Act 2010 (including the Act read together with the EU Treaty) to claim equal pay for equal work by comparison with someone in different employment where the requirements of single status are satisfied is a property right within the meaning of A1P1. (c) There is no reason for this purpose to differentiate between whether the source of the right is wholly domestic or one arising from the State having entered into a Treaty obligation. In light of the Court of Appeal’s construction of s.41 EqA in [Royal Parks] (in which the impact of the ECHR was not considered), without a Convention compliant construction the UK’s system of discrimination protections contains a condition that any claim for discrimination as to pay against a single source other than the worker’s employer must be on the basis of sex discrimination rather than any other protected characteristic and/or omits a right to claim equal pay for equal work by comparison with a worker employed by a different employer of a single source from the regime for race discrimination (“the Sex Discrimination Condition”). The situation of C as a BME worker bringing a claim of race discrimination is analogous to that of a worker bringing a sex discrimination claim. The difference in treatment is on one of the listed grounds within the meaning of Art 14 in that the Sex Discrimination Condition entails indirect race discrimination. It has the effect that BME workers have less protection than non-BME workers against the totality or various types of discrimination which they are likely to experience and so are more likely to be unable to establish a claim to be paid at the same rate as others on equal work. Judicial notice can be taken that the majority of race discrimination claimants are BME. The Sex Discrimination Condition is not a proportionate means of achieving any legitimate aim.”

“…at any stage of the proceedings, either on its own initiative or on the application of a party, the Tribunal may strike out all or part of a claim or response on any of the following grounds - (a) That it is scandalous or vexatious or has no reasonable prospects of success.”

“(1) only in the clearest case should a discrimination claim be struck out; (2) where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence; (3) the claimant’s case must ordinarily be taken at its highest; (4) if the claimant’s case is ‘conclusively disproved by’ or is ‘totally and inexplicably inconsistent’ with undisputed contemporaneous documents, it may be struck out; and (5) a tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.”

“Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context…Nevertheless, it remains the case that the hurdle is high, and specifically that it is higher than the test of the making of a deposit order, which is that there should be ‘little reasonable prospect of success’.” (Emphasis in original.)

“19 Indirect discrimination (1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if – (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.”

“23 Comparison by reference to circumstances (1) On a comparison of cases for the purposes of section 13, 14, 19 or 19A there must be no material difference between the circumstances relating to each case.”

“41 Contract workers (1) A principal must not discriminate against a contract worker – (a) as to the terms on which the principal allows the worker to do the work; (b) by not allowing the worker to do, or to continue to do, the work; (c) in the way the principal affords the worker access, or by not affording the worker access, to opportunities for receiving a benefit, facility or service; (d) by subjecting the worker to any other detriment. ….. (a) as to the terms on which the principal allows the worker to do the work; (b) by not allowing the worker to do, or to continue to do, the work; (c) in the way the principal affords the worker access, or by not affording the worker access, to opportunities for receiving a benefit, facility or service; (d) by subjecting the worker to any other detriment. (5) A ‘principal’ is a person who makes work available for an individual who is – (a) employed by another person, and (b) supplied by that other person in furtherance of a contract to which the principal is a party (whether or not that other person is a party to it). (6) “Contract work” is work such as is mentioned in subsection (5).

“indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”

“40. …In the equal pay case of Grundy v British Airways plc [2007] EWCA Civ 1012; [2008] IRLR 74, at para 27, Sedley LJ said that the pool chosen should be that which suitably tests the particular discrimination complained of. In relation to the indirect discrimination claim in Allonby v Accrington and Rossendale College [2011] EWCA Civ 529; [2001] ICR 1189, at para 18, he observed that identifying the pool was not a matter of discretion or fact-finding but of logic. Giving permission to appeal in this case, he observed that ‘There is no formula for identifying indirect discrimination pools, but there are some guiding principles. Amongst these is the principle that the pool should not be so drawn as to incorporate the disputed condition’. 41. Consistently with these observations, the Statutory Code of Practice (2011) prepared by the Equality and Human Rights Commission under section 14 of the Equality Act 2006, at para 4.18, advises that: ‘In general, the pool should consist of the group which the provision, criterion or practice affects (or would affect) either positively or negatively, while excluding workers who are not affected by it, either positively or negatively.’ In other words, all the workers affected by the PCP in question should be considered. Then the comparison can be made between the impact of the PCP on the group with the relevant protected characteristic and its impact upon the group without it…There is no warrant for including only some of the persons affected by the PCP for comparison purposes. In general, therefore, identifying the PCP will also identify the pool for comparison.” ‘In general, the pool should consist of the group which the provision, criterion or practice affects (or would affect) either positively or negatively, while excluding workers who are not affected by it, either positively or negatively.’ In other words, all the workers affected by the PCP in question should be considered. Then the comparison can be made between the impact of the PCP on the group with the relevant protected characteristic and its impact upon the group without it…There is no warrant for including only some of the persons affected by the PCP for comparison purposes. In general, therefore, identifying the PCP will also identify the pool for comparison.”

“Each member state shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.”

“18. However, where, as in the main proceedings here, the differences identified in the pay conditions of workers performing equal work or work of equal value cannot be attributed to a single source, there is no body which is responsible for the inequality and which could restore equal treatment. Such a situation does not come within the scope of article 141(1) EC. The work and the pay of those workers cannot therefore be compared on the basis of that provision.”

“49. Three categories are involved. The first comprises cases in which statutory rules apply to the working and pay conditions in more than one undertaking, establishment or service. By way of example, one may think of the salaries of the nursing staff working for a service such as the National Health Service. Secondly, there are cases in which several undertakings or establishments are covered by a collective works agreement or regulations governing the terms and conditions of employment. Finally, the third category concerns those cases in which the terms and conditions of employment are laid down centrally for more than one organisation or business without a holding company or conglomerate. 50. In all of these cases it is possible, going beyond the boundaries of the individual undertaking or service, to compare male with female employees in order to determine whether there is discrimination prohibited by article 141 EC. 51. The features common to the three categories is that regulation of the terms and conditions of employment actually applied is traceable to one source, whether it be the legislature, the parties to a collective works agreement, or the management of a corporate group. 52. Advocates General Cosmas and Lenz, and now the United Kingdom Government, were right to stress that as being an essential criterion. Why? Article 141 EC is addressed to those who may be held responsible for the unauthorised differences in terms and conditions of employment. In the cases mentioned, they are the legislature, the parties to a collective works agreement and the management of a corporate group. They may be held accountable in this regard. On the other hand, if differences in pay arise as between undertakings or establishments in which the respective employers are separately responsible for the terms and conditions of employment within their own undertaking or establishment, they cannot possibly be held accountable for any differences in the terms and conditions of employment between those undertakings.”

“61. …Public authorities purchase goods and services on a large scale. The council cannot be obliged, when contracting out specified services, to impose on the suppliers concerned a requirement that the terms and conditions of employment for women whom they employ must be the same as those of male workers who perform equivalent work for the council. A fortiori, that argument cannot be used to oblige the present employers to continue to bring the working conditions of women whom they employ into line with those of men performing equivalent work for the council.”

“47. It is clear from the order for reference that the male worker referred to by the applicant is paid by the college under conditions determined by the college, whereas ELS agrees with the applicant the pay which she receives for each assignment. 48. The fact that the level of pay received by the applicant is influenced by the amount which the college pays ELS is not a sufficient basis for concluding that the college and ELS constitute a single source to which can be attributed the differences identified in the applicant’s conditions of pay and those of the male workers paid by the college. ….. 50. …article 141(1) EC must be interpreted as meaning that a woman whose contract of employment with an undertaking has not been renewed and who is immediately made available to her previous employer through another undertaking to provide the same services is not entitled to rely, vis-à-vis the intermediary undertaking, on the principle of equal pay, using as a basis for comparison the remuneration received from equal work or work of the same value by a man employed by the woman’s previous employer.”

“82. …What must be explored is the position of the body which it is said has responsibility for and power to alter the wages in both A and B. This is the party or institution or collective agreement which is said to be the single source. 83. To focus on the powers of the immediate employer of a claimant is therefore potentially to look in the wrong direction. It is not irrelevant, for these powers may be such as effectively exclude any superior or distinct body having responsibility and power; but that the central investigation must be as to the powers and responsibilities of the person, institution or agreement alleged to be the single source must not be in doubt. 84. …the factual inquiry was not simply into who had set the terms in respect of pay. The question per [Lawrence] is whether there is a ‘body which is responsible for the inequality and which could restore equal treatment’. [Potter] is Employment Appeal Tribunal authority on the meaning of the first part of the phrase: responsibility for inequality. The sense it adopts is one of ongoing rather than causative responsibility for the disparity. ….. 86. The tribunal did not ask whether Glasgow could remedy pay inequalities in practical terms. It was right to conclude that a theoretical right to do so would not suffice unless exercised, but the elimination of a theoretical power, such as that in [Robertson]…unless there was evidence that it had actually been exercised, is different territory from an inquiry into the practical realities of the employment and governance relationships in a situation such as that before us.” (Emphasis in original.)

“According to the tribunal, it was not enough to be a single source that a body retained legal power to remedy disparity in pay if that power was not in fact exercised. As the tribunal had found that Glasgow had, as a matter of practice, restricted its control over the ALEOs to a strategic level, it was to be regarded as the equivalent of the Crown in Robertson. In our opinion the tribunal’s decision is based on a misreading of Robertson and the decision of the Court of Justice in Lawrence…Consideration must be given to ‘responsible for the inequality’ but for present purposes the focus is on ‘which could restore equal treatment’. Based on its reading of Robertson, the tribunal took the view that, irrespective of whether it had power to do so, if in practice Glasgow did not concern itself with the terms and conditions of those employed by [the ALEOs] then it could not be held to be a single source. That is not what was said in Lawrence and it is to fail to have regard to the facts in Robertson where the power to negotiate and set most aspects of pay of the civil servants employed in DEFRA was specifically delegated by the Minister for the Civil Service by statutory instrument.”

“57. The starting point must be to identify the mischief to which section 41 is directed. Part 5 of the 2010 Act is concerned, broadly, with discrimination at work, or – to put it another way – with discrimination in the context of relationships under which individuals provide their work. Typically, the only relevant relationship is the (contractual) relationship between the worker and the employer, so that any discrimination which occurs at work is, subject to the detailed provisions of the Act, the responsibility of the employer under section 39. However, the peculiarity of contract work is that access to the work and what happens at work is the responsibility not of the employer but of a third party, i.e. the principal: that situation creates an additional (non-contractual) relationship – “the principal-worker relationship”

“Head (a) covers a situation where the principal (P) will only “allow” the worker (W) to work on particular “terms”. “Term” does not of course mean a contractual term, since P has no contract with W: it evidently connotes a (discriminatory) requirement imposed as a condition of being allowed to work. An example would be a prohibition by P on W wearing clothes or jewellery of ethnic or religious significance.”

“They have nothing to do with W’s rights under his or her contract with S” (the supplier). He went on to say that this distinction was recognised in the CA’s reasoning in Allonby v Accrington and Rossendale College and others [2001] EWCA Civ 529, [2001] ICR 1189 (“Allonby CA”). As I have described earlier, the CA referred questions regarding the alleged comparator for the article 141(1) EC equal pay claim to the ECJ (para 117 above). There was also a claim against the college brought under section 9 of the Sex Discrimination Act 1975 (“SDA”), in relation to access to certain benefits and facilities. Section 9 SDA was in similar terms to section 41 EqA. The CA remitted this aspect of the claim to the tribunal, as further findings were required. After citing Sedley LJ’s reasoning at para 35 in Allonby CA, Underhill LJ observed (at para 61): “Sedley LJ is thus in that passage making a distinction between rights enjoyed by the applicant under her contract with ELS, in respect of which no claim could lie against the college, and access to “benefits … afforded by the College”, in respect of which it could.”

“…like Sedley LJ he draws a clear distinction between benefits which derive from ELS under the applicant’s contract with it and non-contractual benefits accorded by the college.”

“65. …namely that a complaint by a contract worker that the terms of his or her contract with the supplier are discriminatory can only be made against the supplier because such terms are no part of the principal-worker relationship. That reflects the basic structure and purpose of (what is now) s 41…”

“When interpreting a written court, the court is concerned to identify the intention of the parties by reference to ‘what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean’, to quote Lord Hoffman in Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101, para 14. And it does so by focusing on the meaning of the relevant words…in their documentary, factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the lease, (iii) the overall purpose of the clause and the lease, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party’s intentions.”

“4. …The factual matrix is key to understanding what the parties must have intended by the words they used. But it far from follows that the need to know what the matrix was requires a full trial with discovery, evidence and cross-examination of witnesses. If there is no actual conflict of evidence on a relevant point of background matrix, it is only when there really are reasonable grounds for supposing that a fuller investigation of the facts as to the background might make a difference to construction that the court should decline to construe the contract on a summary judgment (including strike out) application. 5. The court should not be over-astute to decline to deal with the construction of a contract summarily merely on the basis that something relevant to the matrix might turn up if there were a full trial. Most disputes as to ‘pure’ construction of a contract will be suitable for summary determination because the factual matrix necessary for its construction will itself be determinable on that application.”

“It is a general principle of the law that it is a party’s duty to bring forward the whole of his case at the proper time. The reasoning of Robert Walker LJ in Jones v Governing Body of Burdett Coutts School [1999] ICR 38 is, with great deference, consonant with this. A new point ought only to be permitted to be raised in exceptional circumstances, as Robert Walker LJ held at page 44B…There is a public interest, beyond the interests of individual parties, that statutory tribunals exercise the whole of but exceed none of the jurisdiction which Parliament has given them upon such facts as are proved or admitted before them…”

“Right to respect for private and family life Article 8 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Prohibition on discrimination Article 14 The enjoyment of rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

“In order to establish that different treatment amounts to a violation of article 14, it is necessary to establish four elements. First, the circumstances must fall within the ambit of a Convention right. Secondly, the difference in treatment must have been on the ground of one of the characteristics listed in article 14 or ‘other status’. Thirdly, the claimant and the person who has been treated differently must be in analogous situations. Fourthly, objective justification for the treatment will be lacking.”

“It is not difficult, when considering any provisions of the Convention…to identify the core values which the provision is intended to protect. But the further a situation is removed from one infringing those core values, the weaker the connection becomes, until a point is reached when there is no meaningful connection at all. At the inner extremity a situation may properly be said to be within the ambit or scope of the right, nebulous though those expressions necessarily are. At the outer extremity, it may not. There is no sharp line of demarcation between the two. An exercise of judgment is called for…I cannot accept that even a tenuous link is enough. That would be a recipe for artificiality and legalistic ingenuity of an unacceptable kind.” (Emphasis added by Lord Stephens.)

“81. …In addition to the overriding core value of human dignity and human freedom the core values in relation to an employment-related dispute between an individual and the state which are protected under article 8 can be discerned from Denisov and from JB v Hungary. [Application No 45434/12 (unreported)]. In Denisov the core values are protection from measures whose reasons are primarily though not exclusively, connected with a suspect ground…or from measures whose consequences are ‘very serious affecting private life to ‘a very significant degree’. In JB v Hungary at para 131 the core value is freedom of choice in the sphere of private life. The substantive right in issue is relevant to whether the material facts are within the ambit of that right…In the context of an employment-related dispute between an individual and a state the reasons under the reason-based approach are limited and severity is a necessary component of a consequence-based approach. Those limitations must affect the assessment of whether the material facts are within the ambit of that aspect of article 8 ECHR.”

“50. …It seems to me to be an application of the general principle…that where a state creates rights under its domestic law which fall within the ambit of a Convention article, it must do so in a non-discriminatory manner. It follows from this general principle that article 14 is engaged if a person would have had such a right but for discrimination covered by article 14.”

“On the basis of the modality reasoning, the Claimants are entitled to submit for Art 14 purposes that where the state has created a right under its domestic law which falls within the ambit of a Convention Article, it must do so in a non-discriminatory manner. It follows from this general principle that Art 14 is engaged if a person would have had such a right but for discrimination covered by Art 14.”

“…in a situation where a general measure or policy has disproportionately prejudicial effects on a particular group. It is described as ‘indirect’ discrimination because the measure or policy is based on an apparently neutral ground, which in practice causes a disproportionately prejudicial effect on a group characterised by a salient attribute or status.”

“…it has to be shown by the claimant that a neutrally formulated measure affects a disproportionate number of members of a group of persons sharing a characteristic which is alleged to be the ground of discrimination, so as to give rise to a presumption of discrimination. Once a prima facie case of indirect discrimination has been established, the burden shifts to the state to show that the indirect difference in treatment is not discriminatory. The state can discharge this burden by establishing that the difference in the impact of the measure in question is the result of objective factors unrelated to any discrimination on the ground alleged. This requires the state to demonstrate that the measure in question has an objective and reasonable justification: in other words, that it pursues a legitimate aim by proportionate means…”

“39. It is so well known as to be a matter of judicial knowledge that the overwhelming majority of claimants alleging sex discrimination are women, but this does not mean that the availability of a particular remedy in a type of claim, such as whistleblowing, which…is brought by women and men in roughly equal numbers, and the unavailability of the same remedy in a sex discrimination claim, constitutes a difference in treatment on the grounds of sex or some form of indirect discrimination against women. Otherwise, this would lead to a comparison between every form of litigation brought approximately equally by men and women with sex discrimination claims. 40. For example, let us suppose for the purposes of argument that claims for personal injuries in road traffic accidents are brought approximately equally by men and women. Personal injury claims have some advantages by comparison with discrimination claims, but also some disadvantages. The differences are many and various, and it is sufficient to point to a few…I do not consider that a discrimination claimant is entitled to say that the unavailability in her case of certain remedies given to a road traffic accident victim amounts to a breach of her rights under article 8 read with article 14 of the ECHR. …… 42. …The reason why a claimant in a discrimination case cannot claim interim relief is because she has not brought one of the small and select group of substantive claims in which Parliament has conferred jurisdiction on the employment tribunal to grant interim relief. The fact that a particular remedy is available in litigation of type A but not of type B does not constitute discrimination against the claimant in a type B case on the ground of her status as a type B claimant.”

“Taking into account all of the various procedural/remedies features of discrimination/ victimisation claims and of section 103A claims, including interim relief, in my judgment it is not the case that the procedural/remedies requirements of discrimination and victimisation cases are less favourable than those that apply to section 103A claims. Whilst the right to claim interim relief is a real benefit, it does not, in my view, outweigh the procedural and remedies advantages of discrimination/victimisation claims, as described above. It is necessary to take a practical and realistic approach to this comparison. If this is done, then, in my opinion, the features of discrimination/victimisation claims which are more favourable to claimants are considerably more valuable in practice than the countervailing features of section 103A claims.”

“77…There is no magic in the concept under EU law of less favourable treatment. Like an Art 14 comparison, it raises a factual question as to whether there has been different (less favourable) treatment when the Claimants’ position is compared to the comparators. The Claimant has the burden of showing this. They have not discharged it. I accept the evidence of Ms Bond that there are substantial benefits to FtT complainants which do not apply in the County Court…I do not consider when this package is considered in a holistic manner that the lack of a financial remedy before the FtT has been shown to establish less favourable treatment against the only proper comparator…”