A group of toilet cleaners and attendants for London’s most famous parks could be about to make legal history in the court of appeal by arguing that their outsourced contracts amounted to indirect race discrimination.
While Royal Parks’ mostly white in-house staff were paid at least the London living wage, its outsourced cleaners, who were almost all black, only received the minimum wage until they went on strike in 2019.
Royal Parks is a charity that manages about 5,000 acres (2,023 hectares) of London parkland owned by the crown, including Hyde Park, Regent’s Park and Kensington Gardens.
The landmark case being heard at the court of appeal on Tuesday was first brought to the employment tribunal in 2021 by the United Voices of the World union (UVW), which represents mostly migrant workers and those in precarious employment. This is now the third stage in its attempt to push it through the courts.
If it wins, UVW believes it could make outsourcing untenable for public services because it would force them to offer the same levels of pay and negate any cost saving.
The government was so aware of the potential significance of the case that the Department for Culture, Media and Sport applied to be an interested party, arguing there was “a significant risk” it would lead to a “proliferation of ‘copycat’ claims brought by outsourced workers”. Its application was denied.
One of the women bringing the case began work as an attendant cleaning toilets in Kensington’s Diana Memorial Playground in 2014. The woman, who is Ghanaian and did not want her name published, said she struggled to afford food but accepted the low pay from Vinci, the company that received the outsourced contract.
However, once she realised how different things were for Royal Parks’ own staff, whose starting salary was a London living wage of £10.75 an hour rather than the minimum wage of £8.72 an hour, she decided to join a strike for better pay in December 2019.
“Most of the [Royal Parks staff] are white and then those of us who are brown and black, most of us are the people who do the most dirty jobs, difficult jobs, but then we are being employed by outsourced organisations,” she said.
After the strike, Royal Parks agreed to pay cleaners a London living wage but the group argues that they were unfairly paid at least £4,000 less than direct employees every year from 2014 to 2019. Vinci declined to comment and the cleaning contract is now with a new company.
The woman who works in the Diana Memorial Playground said it was “very terrible” trying to survive on wages before the London living wage was paid. “We’re living in London where the rate is very high … It’s very difficult to live with that little money that we had. We all have family members to think about, to put food on the table for.”
She added: “People respect the Royal Parks very well and especially where I work, the Diana Memorial Playground. Because of the name Diana there are a lot of tourists all over … If the British public knew about what we the workers are going through it would really shock them.”
About 90% of the roughly 50 people working as outsourced toilet maintenance and cleaners for the Royal Parks were black or ethnic minority in 2019, while 87% of Royal Parks’ 160 direct employees were white.
Petros Elia, the UVW general secretary, sees the case as part of a strategic move to stamp out outsourcing in the public sector. He believes that by tendering contracts, organisations avoid taking responsibility for offering lower pay and conditions.
“Outsourcing by its very nature is almost guaranteed to ensure that millions and millions of workers continue to toil on the absolute legally worst terms and conditions that an employer can provide,” Petros said. “It’s absolutely inevitable that that will be the case for as long as outsourcing continues.”
The case was the first legal claim of its kind to use equality legislation to challenge outsourcing. It was won at the central London employment tribunal in 2021 and then overturned at the employment appeal tribunal after Royal Parks argued that the initial judgment had improperly excluded other outsourced workers from consideration. Now the appeal court will decide whether the EAT was wrong to consider the pay of other groups of outsourced workers.
The contract the case relates to was drawn up by the Royal Parks Agency in 2014 before the charity was formed.
In a statement subsequent to the employment appeal tribunal, the Royal Parks charity said it was pleased it had concluded that it “did not indirectly discriminate against the contractor’s employees”. They added: “We take all matters of equality, diversity and inclusion very seriously.
“We ensure that all qualifying workers employed by our contractors to work in the parks are paid the London living wage and we are immensely grateful to all the cleaning staff who work so hard to keep the parks looking their best.”
