Great Ormond Street Hospital cleaners secure victory in legal fight over racial discrimination claims

The appeal was brought by 80 cleaners, the vast majority of whom are from global majority backgrounds.  

The cleaners argued they were unlawfully treated less favourably than other staff at the hospital by being denied Agenda for Change (AfC) terms and conditions - which came into force on 1 December 2004 - despite doing work assessed as equivalent to NHS Band 2 roles. 

In a judgment handed down this week, the EAT upheld the cleaners’ appeal against a previous Employment Tribunal ruling confirming that their claims of indirect racial discrimination succeed in respect of the period after they transferred into direct NHS employment, but not the period before. 

From August 2016 until 31 July 2021, the cleaners were employed by OCS Group UK Ltd who held the cleaning contract at GOSH. During that period, they were paid less and had inferior terms and conditions than staff directly employed by the trust under the nationally agreed Agenda for Change framework, which governs pay, pensions, sick pay, annual leave and other benefits across most of the NHS. 

On 1 August 2021, the cleaners’ employment transferred to GOSH under TUPE regulations. However, after the transfer, the group argued they were not immediately placed on full AfC terms and continued to experience inferior pay and conditions. 

Represented by law firm Leigh Day, the cleaners brought claims for indirect racial discrimination, arguing the trust’s approach to outsourcing and to the treatment of cleaners after the transfer placed workers from global majority backgrounds at a disadvantage compared with predominantly white directly employed staff. 

The cleaners argued that under the AfC agreement they would be paid under Band 1, which would give them £11.50 per hour instead of their current wage of £10.75 per hour. If they were paid under the agreement they would receive further benefits in relation to overtime, sick pay, holiday pay and have access to the NHS pension scheme. 

The EAT judgment confirms that: 

1. In respect of the pre-transfer period while employed by OCS: The EAT held that following judgment in Royal Parks Ltd v Boohene [2024] ICR 1036 s41 of the Equality Act did not permit a discrimination claim to be brought against a contract worker against a principal. The EAT was bound by this judgment.  
2. In respect of the post-transfer period: The EAT held that there was a particular disadvantage to the claimants as 78% of the cleaners were of BAME background as compared with 51% of staff employed by the trust at band 2. The EAT also held that objective justification for the difference between the claimants and its own employees was not made out. The EAT held that the trust would have been able to put the claimants on AfC rates from the date of, or shortly after, the transfer. 

The EAT rejected the trust’s arguments that it was not responsible for the cleaners’ terms and conditions and confirmed that the evidence of racial disparity between the cleaners and wider AfC workforce was sufficient to establish a case of disadvantage. 

The judgment is expected to have implications beyond GOSH, particularly for NHS trusts and other public bodies that have relied on outsourcing arrangements which disproportionally affect workers from global majority backgrounds. 

The cleaners are represented by Aman Thakar, employment solicitor at Leigh Day. The group are members of United Voices of the World Union. 

Aman Thakar said: 

“This is a long-overdue victory for a group of workers who have been treated as second-class staff for far too long. The EAT has recognised that it is not lawful for an NHS trust to benefit from the labour of predominantly global majority workers while denying them the pay and conditions afforded to their colleagues. 

“The judgment makes clear that responsibility cannot be avoided through delay after workers transfer in-house. Our clients have shown extraordinary resilience and determination in pursuing this case, and this outcome brings them one step closer to justice and equality.” 

Petros Elia, general secretary of United Voices of the World, said: 

“This is not just a victory; it is a historic rupture in the systemic injustice that has plagued the NHS for decades. For too long, thousands of predominantly Black, Brown and migrant facilities workers - the cleaners, porters, caterers and security staff - have been treated as second-class citizens and paid third-class wages, whether outsourced or in-housed - despite being the backbone of our health service. 

“The Employment Appeal Tribunal’s ruling confirms what we have always known: that forcing these workers to wait months or years for the pay and conditions they are legally entitled to is not just bad practice - it is unlawful race discrimination. This precedent, forged in the tireless four-year legal fight of our members at Great Ormond Street, provides hope for every worker across the country. 

“The message to every NHS trust is clear: the era of a two-tier workforces is over. Enough of hiding behind excuses of bureaucracy or complexity. Bring your staff in-house immediately and grant them full rights from day one. UVW stands shoulder to shoulder with every worker demanding equality - and we will win for all.”