Mr Alpha Anne Ms Memuna Kabia Mr Philip Sraha Ms Genevieve Tommy v Great Ormond Street Hospital for Children NHS Foundation Trust — 2024

The claimants were domestic cleaning operatives, all from a BAME background, who brought a multiple claim of indirect race discrimination against Great Ormond Street Hospital for Children NHS Foundation Trust. They said that from 1 August 2016 the Trust had failed to require its contractor, OCS, to offer Agenda for Change rates and benefits, and that when the service was brought in-house on 1 August 2021 they should have been offered those terms from day 1. The Tribunal held that the pre-transfer complaints were in scope and in time as a continuing act under Barclays v Kapur, because the Trust had made a continuing decision to require only London Living Wage for the contractor workforce and had refused to engage when asked about AfC terms in 2019 and 2020.

On the facts, the Tribunal found that the Trust effectively set the pay rate for the contractor cleaners through the contract, that it could have required AfC terms earlier, and that by 30 April 2021 it knew the incoming domestic cleaning operatives matched to AfC Band 2. It also found that the post-transfer harmonisation process was phased through 2022, with some AfC terms introduced later for annual leave, maternity and paternity leave, and other terms still being worked through. The Tribunal rejected the suggestion that cleaners had not previously been banded under AfC and recorded that the Trust had accepted, or could have required, enhanced terms in its contract with OCS.

The claim still failed because, following The Royal Parks Ltd v Boohene & Ors, the Tribunal held that the pleaded PCPs could not properly be analysed without evidence about all contractors doing comparable work at GOSH. It said the appropriate pool had to include all contractors undertaking AfC Band 1 or 2 work, but no evidence was available about their pay or ethnic composition. For that reason, the Tribunal concluded that the claimants had not shown a PCP that was applied in the necessary way, and had not proved particular disadvantage for BAME contractors as a group. The claims of indirect race discrimination were therefore dismissed, and no remedy was awarded.