In this case, a requirement for employees to agree new terms and conditions was found to be a “provision, criterion or practice” (PCP) that was indirectly discriminatory towards older workers. These employees were found to suffer a greater disadvantage than younger employees as they stood to lose benefits, such as annual leave, which they currently enjoyed on the basis of their length of service. On the facts of this case, the PCP was objectively justified as there was no less discriminatory way for the employer to achieve its legitimate aim of reducing staff coststo ensure its future viability and to have in place market-competitive, non-discriminatory terms and conditions. Going forward, employers looking to make changes to terms and conditions should consider whether such changes may have a discriminatory effect, and if so, whether they can be objectively justified.
Braithwaite and others v HCL Insurance BPO Service Ltd UKEAT/0152/14 and UKEAT/0153/14