The Supreme Court refused to allow an appeal against the Court of Appeal’s decision rejecting the claimant’s claim of discrimination over not being paid the London Living Wage, unlike directly employed staff.

The respondent, a charity responsible for managing the Royal Parks and other open spaces in London, had engaged part of its workforce directly, known as ‘directly employed, and others through an agency known as ‘indirectly employed’. The directly employed workers were civil servants until their employment transferred to the respondent. They were mainly office workers and predominantly white.  The indirectly employed workers take on functions such as cleaning and maintenance, gate locking and repairs. The size of the indirectly employed workers was much greater than the directly employed workers but there were no findings about its ethnic composition.

The claimants brought a claim on the basis that the directly employed were paid the London Living Wage whereas those who were indirectly employed were not. The basis of the claim was indirect race discrimination.

The Court of Appeal decision was previously covered as a case review where the claimants were unsuccessful in their appeal. The EAT had overturned the Tribunal decision to allow the claim finding that the Tribunal would have had to look at the provision (relating to the living wage) across all employees and all others who were indirectly employed.  As this was not done and there was no evidence about the racial make-up the the claim had to fail.  The Court of Appeal upheld – they looked at Section 41 of the Equality Act 2010 which prohibited discrimination relating to terms which the principal allows the worker to do the work.  This meant that it had to be imposed by the principal but in fact the claim related to contractual terms between the claimants and the employer. Thus, the agency claim could not succeed.

The claimants sought to appeal to the Supreme Court. It is notable that in response to pressure from the Union the respondent decided that its contractors should switch to paying the living wage by April 2023 at the very latest. The contractor relating to the claimants had actually brought this into effect in November 2019. The Supreme Court decided upon receiving the request for an appeal that permission to appeal would not be granted.  This brings this legal saga to an end and allows the Court of Appeal decision to stand.

Whilst this is not a judgement per se, it does demonstrate the Supreme Court’s view in terms of whether there is an arguable appeal from the Court of Appeal decision and also demonstrates how this long-running case has now come to an end. The decision also demonstrates how Section 41 of the 2010 Act relates to the principal and not the contractor – a subtle distinction which does have a real life effect.

You can read the case in full here:
https://www.supremecourt.uk/cases/uksc-2025-0030