The Employment Appeal Tribunal dismissed an appeal concerning a discrimination complaint brought by a cleaning employee of the Ministry of Justice. It ruled that the MoJ was not responsible for the complaint as she had been contracted out.
Fatima Djalo works as a cleaner for OCS, which is a private firm that offers facilities management services to other government departments and the MoJ.
She claimed the MoJ indirectly discriminated her by not paying her the same salary as its directly employed staff. She also said that the majority of workers in her position are black or from other ethnic minorities.
Djalo claimed the MoJ has the contractual authority to force OCS to raise her pay to London Living Wage.
Her first tribunal was based on the fact that the department paid contract workers differently than directly employed workers. It also required workers to have been directly employed in order to receive the pay scale.
She claimed that this had led to a disadvantage of ethnic minorities workers.
The first employment tribunal dismissed her claim, stating that sections 19 & 41 of the Equality Act 2010, do not provide protection to contract workers from differences in pay between themselves and directly employed employees.
In February of last year, a similar lawsuit was brought by a group that included toilet cleaners and attendants at London’s Royal Parks. They argued that the outsourced contracts they had were a form of indirect race discrimination.
The case was won by the employment tribunal 2021, but overturned by the EAT. The Court of Appeal then ruled that the Equality Act, s.41, did not allow a contract worker to bring a discrimination case against their principal employer in relation to the pay of employees by Vinci.
The Royal Parks case influenced the EAT’s ruling on Djalo. Heather Williams , Justice Heather Williams , ruled that the initial tribunal was correct to conclude that the claim fell under s.41 Equality Act.
Djalo also claimed that indirect discrimination in the pay of contract workers and non-contract employees was not in accordance with the European Convention on Human Rights.
The EAT rejected this argument as well, concluding Djalo was not treated less favourably.
Djalo received support from the United Voices of the World (UVW) union, which has participated in numerous campaigns for fairer treatment of outsourced cleaners and carers, as well as other staff.
The RMT rail union said earlier this week that outsourcing train cleaners is racist. It creates an “effectively separated” workforce, trapping thousands of black and ethnic minority staff into insecure jobs without the same benefits that directly employed staff receive.
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