EAT (Age Discrimination) This is an appeal against a decision of the tribunal dismissing a claim for indirect age discrimination. Over time, a number of employees from different companies had had their employment transferred to the Respondent employer. As a result, its employees had different terms and conditions in relation to matters such as working hours, annual leave, entitlement to private health care, carers’ leave, and potentially, entitlement to redundancy. The Respondent was facing continuing losses and sought to address those losses by requiring employees to agree new terms and conditions or be dismissed. That requirement put older employees at a particular disadvantage as employees within the 38 to 64 year age range were more likely to lose their existing contractual rights The tribunal found that the requirement to enter a new contract was a provision, criterion or practice (‘PCP’) but also held, however, that the PCP was objectively justified and dismissed the claim.
The Respondent cross-appealed the finding that a change of terms and conditions could amount to a PCP. The Appellants appealed against the finding that the PCP was objectively justified. The Employment Appeal Tribunal held that the employment tribunal was entitled to find that the requirement that, in order to remain employed, the Appellants had to agree to a new contract with new terms and conditions or be dismissed was a PCP. The tribunal was entitled to find that the PCP was objectively justified. The Respondent had a legitimate aim, namely reducing staff costs to ensure its future viability and to have in place a market competitive, non-discriminatory set of terms and conditions. In considering the issue of objective justification, the tribunal had properly understood the task that it had to carry out and had carried out the task properly. It did consider the effect of the changes upon the affected employees and balanced the needs of the Respondent against those changes. It did have regard to the alternatives proposed by the Appellants. It was entitled to conclude that those alternatives would not achieve the Respondent’s legitimate aim and the PCP was objectively justified as there were no practicable alternative to the changes proposed by the Respondent and its changes were proportionate. Further, the tribunal had not made a perverse finding of fact nor had it misunderstood that it was for the Respondent to show that the PCP was objectively justified.
Lewis J
[2015] UKEAT 0152 – 14 – 0502
Bailii
England and Wales
Employment, Discrimination
Updated: 27 December 2021; Ref: scu.542327