Key Facts
- •Mr. Fasano, born in 1961, was a senior employee of Reckitt Benckiser Health Ltd (RB Health), a subsidiary of Reckitt Benckiser Group PLC (RB Group).
- •He participated in RB Group's Long Term Incentive Plan (LTIP), which was amended in 2019.
- •The 2019 amendment required continued employment on 18 September 2019 to benefit from the changes.
- •Mr. Fasano retired on 30 June 2019 as a 'good leaver' and thus did not benefit from the amendment.
- •He claimed indirect age discrimination under the Equality Act 2010.
- •The Employment Tribunal (ET) found the amendment to be a proportionate means of achieving the legitimate aim of retaining staff.
Legal Principles
Indirect discrimination under the Equality Act 2010, s.19
Equality Act 2010
Agency: Common law principles determine whether one company acts as an agent for another.
Common Law
Justification of discriminatory PCP: A provision, criterion, or practice (PCP) must be a proportionate means of achieving a legitimate aim.
Equality Act 2010, s.19(2)(d)
EAT Rules 1993, rule 39(2): The EAT may dispense with procedural steps in the interests of justice.
EAT Rules 1993
Liability of employers and principals under Equality Act 2010, ss. 109 and 110.
Equality Act 2010
Outcomes
Appeal allowed in relation to justification.
The PCP of requiring employment on 18 September 2019 to benefit from the LTIP amendment was not a means of achieving the legitimate aim of retaining staff, as those already retired could not be retained.
Cross-appeal (implicitly raised) allowed in relation to agency.
The ET's finding that RB Group acted as an agent for RB Health was perverse. RB Health had no control over the LTIP, and there was no evidence of authorization by RB Health for RB Group's actions.
Mr. Fasano's claim dismissed.
While the PCP was unjustified, the lack of agency between RB Group and RB Health meant neither company was liable.