GOSH Loses Appeal on Post-Transfer Discrimination Claim for Cleaners
Great Ormond Street Hospital has partially lost an appeal concerning claims of indirect race discrimination brought by a group of former contract cleaners.
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Cleaners' Discrimination Claim Partially Succeeds at Appeal Tribunal
Great Ormond Street Hospital for Children NHS Foundation Trust (GOSH) has been partially unsuccessful in its appeal against an Employment Tribunal decision concerning claims of indirect race discrimination. A group of 80 cleaners, who transferred from a contractor to GOSH in August 2021, alleged they were paid less than comparable directly employed NHS staff due to their race.
Pre-Transfer Claims Dismissed
The Employment Appeal Tribunal (EAT) upheld the original tribunal's decision that claims relating to the period *before* the cleaners transferred to GOSH employment could not proceed. This was based on a binding Court of Appeal ruling in the case of Royal Parks Ltd v Boohene. This judgment clarified that discrimination claims brought by contract workers against a principal (like GOSH) regarding their own employment contract's pay terms are not covered by Section 41 of the Equality Act 2010. The EAT found no evidence that GOSH had explicitly prohibited the contractor from paying the cleaners at Agenda for Change (AfC) rates.
Post-Transfer Discrimination Found
However, the EAT found that the original tribunal had misapplied the Royal Parks precedent to the period *after* the cleaners transferred to GOSH. The EAT ruled that the comparison in the post-transfer period was between employees of GOSH, not between contract workers and employees. Crucially, the EAT determined that the cleaners had established a prima facie case of indirect race discrimination. This was because the statistics showed a significant disparity, with 78% of the transferred domestic staff being of BAME background compared to 51% of GOSH's Band 2 employees. The tribunal had previously rejected GOSH's arguments for objective justification for the pay difference, particularly concerning TUPE (Transfer of Undertakings Protection of Employment) regulations. While the EAT agreed that the original tribunal had made errors in its TUPE analysis, it ultimately concluded that these errors did not affect the outcome. This was because the cleaners' original contracts contained a clause allowing for reasonable changes to terms and conditions, meaning GOSH could have implemented AfC rates from the point of transfer. The EAT found that GOSH had been dilatory in harmonising the cleaners' pay and benefits, and there was no objective justification for this delay. Therefore, the EAT quashed the tribunal's decision regarding the post-transfer period and substituted a finding that the claims of indirect race discrimination, specifically concerning the failure to apply AfC pay and benefits, should succeed. **Read the entire judgment here:** Mr Alpha Anne & Others v Great Ormond Street Hospital for Children NHS Foundation Trust [2026] EAT 15
