Mr A Fasano v Reckitt Benckiser Group plc and Reckitt Benckiser Health Ltd: 3306340/2020
| Judgment Date | 29 December 2021 |
| Citation | 3306340/2020 |
| Date | 29 December 2021 |
| Published date | 12 January 2022 |
| Court | Employment Tribunal |
| Subject Matter | Age Discrimination |
Case Number: 3306340/2020
Page 1 of 52
EMPLOYMENT TRIBUNALS
Claimant:
Respondent
s
:
Mr A Fasano v Reckitt Benckiser Group plc (1)
Reckitt Benckiser Health
Limited (2)
Heard at: Reading (by CVP) On: 4–7, 11 & 13 October 2021
and (in chambers)
11 & 12 November and
10
December 2021
Before: Employment Judge Anstis
Ms A Crosby
Mrs H T Edwards
Appearances
For the Claimant:
Mrs L Ban
er
jee (counsel)
For the Respondent
s
:
Mr S Forshaw
(counsel
)
RESERVED JUDGMENT
The claimant’s claim of indirect age discrimination is dismissed.
REASONS
A. INTRODUCTION
The claim
1. The claimant was employed by the second respondent (or its predecessors)
from 1 June 1997. By the time of his retirement on 30 June 2019 he was
employed as Chief Supply Officer. His role was one level below a board
director.
2. The first respondent is a quoted company and is the ultimate parent company
of the second respondent. The second respondent is 100% owned by the first
respondent, albeit with several entities in between them in the chain of
ownership.
3. The claimant’s claim is of post-employment indirect age discrimination.
Case Number: 3306340/2020
Page 2 of 52
4. His employment ended under the terms of a “retirement agreement” dated 7
September 2018. This included provision for a period of garden leave with the
claimant’s employment eventually ending on 30 June 2019. For the purposes
of his claim the important element of this retirement agreement is that he was
to be treated as a “good leaver” under the respondent’s 2017 long term
incentive plan (“LTIP”). The LTIP is offered to senior employees within the first
respondent’s group and gives employees who participate the opportunity to
receive stock and stock options in the first respondent on the attainment of
performance conditions, with those performance conditions being assessed on
a group-wide rather than individual basis.
5. In the period September 2019 to May 2020 the claimant was 58 years old. His
claim is based on being a member of a group of people aged 57 or above.
6. On 18 September 2019 the remuneration committee (“Remco”) of the first
respondent decided to amend the performance conditions that attached to the
2017 LTIP. The effect of this was that the relevant awards would vest at at least
50%, compared to the 0% that had been previously projected. This relaxation
of the performance conditions only applied to “those who are current group
employees as at 18 September 2019” and thus did not include the claimant,
whose employment had ended on 30 June 2019. It is said by the claimant that
this decision amounted to post-employment indirect age discrimination.
7. The claimant’s claim in the employment tribunal is expressly limited to a claim
of indirect age discrimination, with the claimant reserving the right to bring a
separate breach of contract claim in the High Court. We therefore do not intend
in this decision to address whether there has been any breach of contract in
respect of the actions of the respondents, and our decision is not intended to
affect or prejudice any later claim of breach of contract in respect of the 2017
LTIP.
The issues
8. The parties agree that to determine whether the claimant has been the subject
of unlawful age discrimination, we must address the following issues (omitting
any question in relation to remedy):
“1. This is a claim for:
(1) indirect age discrimination contrary to sections 19 and 39 of the
Equality Act 2010 (“EqA”) against the Second Respondent;
(2) accessory liability contrary to sections 110(2) and/or 112 EqA
against the First Respondent.
Indirect discrimination
Case Number: 3306340/2020
Page 3 of 52
2. Did the Respondents apply to the Claimant and/or refuse to amend the
following provision, criterion or practice (“PCP”):
“requiring LTIP participants (who were not already bad leavers)
to be employed as of 18 September 2019 (or, in the alternative,
May 2020) in order for them to benefit from the amended
performance condition”
3. If so, was any such PCP applied to those of the Claimant’s age group
(those aged 57 or older the Claimant was 58 at the time of the decision)
as well as to those in other age groups?
4. Did any such PCP put or would it put those aged 57 or older at a
disadvantage as compared to those under 57 years of age?
5. Did any such PCP put the Claimant at the particular disadvantage as he
could not meet the PCP and, as a result, his LTIP award lapsed?
6. Can the Respondents show that any such PCP was objectively justified
as a proportionate means of achieving the legitimate aim of retaining and
incentivising existing employees?
7. Without prejudice to the burden of proof which is on the Respondent, the
Claimant contends that the PCP is not objectively justified having regard
to: (i) the treatment of those who left in the period between 18 September
2019 and May 2020 and were allowed to benefit from the amended
performance condition: and (ii) that Mr Rob de Groot benefitted from the
amended performance condition.
The Respondents
8. If the alleged PCP was applied to the Claimant by the First Respondent,
was the First Respondent acting as an agent of the Second Respondent
with the Second Respondent’s authority?
9. If so, is the Second Respondent liable as the Claimant’s (former)
employer pursuant to s 39 EqA and/or pursuant to section 109(2) EqA?
10. Is the First Respondent liable:
(1) pursuant to section 110(2) EqA?
(2) pursuant to section 112 EqA? The Claimant contends that the
First Respondent knowingly helped the Second Respondent to
discriminate. That is denied by the First Respondent.
Time
To continue reading
Request your trial