06/02/2015

Edie & Others c HCL Insurance BPO Ltd.

Uncategorized

Employment Appeal Tribunal

The EAT (Lewis J presiding) gave judgment on 5 February 2015 in this case, holding that:

(i) Dismissal and re-engagement in order to harmonise disparate terms and conditions inherited from historic TUPE transfers can constitute a ‘provision, criterion or practice’ (PCP) for the purposes of an indirect discrimination claim under section 19 of the Equality Act 2010, even if the new terms and conditions do not of themselves place any group at a particular disadvantage;

(ii) However, the employment tribunal was entitled to find that the changes in this case were justified in order to meet the employer’s legitimate aim of reducing staff costs to ensure its future viability and to have in place market competitive, non-discriminatory terms and conditions;

(iii) In particular, it is as a minimum legitimate for an employer to seek to break even year-on-year and for a business to make decisions about the allocation of resources, and alternatives suggested by the claimants which would have delayed or reduced the savings would not have met that legitimate aim and so did not undermine the employer’s justification.

The successful employer was represented by Ben Cooper, instructed by Sarah Peacock of Blake Morgan LLP

Facts

The employer (HCL) is an out-sourcing company which provides services to life insurance and pensions businesses relating to the administration of ‘closed book’ policies, that is those which are no longer sold but where there are existing policies in respect of which premiums continue to be paid which therefore require administration. HCL is part of an international group and its parent company is highly profitable.

Over a period of years, a series of TUPE transfers occurred, as HCL took over the administration of policies from or on behalf of a variety of other companies. This resulted in HCL employing different groups of employees with significant variations in their terms and conditions.

A combination of the economic downturn in 2009, difficulty securing new business and pressure from its customers to reduce its services charges meant that, by 2010, HCL was making substantial losses. It identified an urgent need to reduce staff costs by between £1 million and £2 million.

A review of employees’ terms and conditions was carried out and those terms were benchmarked against industry data. As a result of that review, HCL concluded that the terms of various groups of employees’ were more generous than industry standard levels and that significant savings could be made by reducing those terms. In addition, HCL identified various terms for certain groups that were potentially indirectly discriminatory in favour of older employees because they included service related benefits and/or historic benefits now only available to longer-serving employees.

HCL decided not to make any reductions in basic salary but identified a range of terms to be changed by introducing a new set of harmonised terms and conditions. Those terms included holidays, hours of work, enhanced redundancy entitlement and sick pay.

HCL engaged in a full consultation and then implemented the changes by issuing notices of dismissal to all employees, together with offers of re-engagement on new terms and conditions. A substantial majority of the employees accepted the new terms, but others did not and left HCL’s employment.

The claimants claimed for unfair dismissal, automatic unfair dismissal under TUPE and indirect age discrimination.

Employment tribunal decision and appeal

The employment tribunal dismissed the claimants’ claims for unfair dismissal and automatic unfair dismissal and there was no appeal against those conclusions.

In respect of the indirect age discrimination claims, the Tribunal found that:

(i) HCL had applied a PCP to the effect that, in order to remain in employment, employees had to agree to the new terms and conditions;

(ii) That PCP placed them and older employees generally at a particular disadvantage because older employees were disproportionately more likely to be losing valuable benefits;
(iii) However, in introducing the changes, HCL had a legitimate aim, namely to reduce staff costs to ensure its future financial viability and to have in place market competitive, non-discriminatory terms and conditions; and

(iv) The means used were proportionate to that aim balancing the real needs of HCL against the discriminatory effect of the changes.

The claimants appealed, arguing that the tribunal had failed properly to engage in the necessary critical evaluation required in order to determine the issue of justification and, in particular, had failed adequately to consider various alternative solutions proposed by the claimants and whether HCL’s parent company, with its large profits, could have provided greater financial support.

HCL cross-appealed the finding that the change to new terms could constitute a relevant PCP where those new terms themselves did not place any age group at a particular disadvantage, but the appearance of disadvantage was only created by looking from one side of the change date to the other. Reliance was placed on ABN Amro Management Services Ltd & The Royal Bank of Scotland v Hogben UKEAT/0266/09/DM in support of the cross-appeal.

Held

Dismissing the appeal and the cross-appeal:

(1) ABN Amro could be distinguished on the basis that, in that case, the claimant was seeking to compare himself with a wholly different group of employees to whom a different PCP had been applied at a different point in time;

(2) In the present case, applying the language of section 19 of the Equality Act 2010, there was a valid PCP, namely the requirement to agree new terms, which placed older employees at a particular disadvantage because they were disproportionately giving up contractual benefits which younger employees were less likely to have in the first place;

(3) In order to ascertain whether the Tribunal had properly understood and applied the correct test for justification, it was necessary to read its decision fairly and as a whole;

(4) The Tribunal had cited the correct passages from the relevant authorities, which was a very strong indication that it had properly understood the approach it had to take;

(5) The Tribunal’s findings of fact and reasoning in relation to the unfair dismissal claims indicated that it had in mind the factors relevant to both the importance of the employer’s aims and the disadvantage to the claimants;

(6) The Tribunal said in terms that it had balanced the needs of the employer against the discriminatory effect of the changes and, whilst it might have been preferable to set out the balance in more detail in the section on justification or to refer back to its earlier findings, on a fair reading the Tribunal did have a real appreciation of the impact of the changes on the employees and the real needs of the employer, and balance those needs;

(7) With regard to the alternatives proposed by the claimants and the suggestion that the parent company could have provided more financial support, all those options would have involved delaying or reducing the savings to be made. It is as a minimum legitimate for an employer to seek to break even year-on-year and for a business to make decisions about the allocation of resources. Therefore, the alternatives suggested by the claimants, by delaying or reducing the savings, would not have met HCL’s legitimate aim and so did not undermine its justification and the Tribunal had been right so to find.

Comment

On the issue of justification, this case reiterates well-established principles and emphasises that alternatives which would involve modifying the employer’s aim rather than meeting it will not undermine the justification. Those findings reinforce propositions already established in HM Land Registry v Benson [2012] ICR 627, EAT, para 34 per Underhill P.

On the PCP issue, the case perhaps has wider implications, as authority for the proposition that a change in terms and conditions may constitute a PCP even where the new substantive terms do not of themselves place any group at a particular disadvantage. Consider the following scenarios:

• Employer A has for some time conferred a contractual benefit which is disproportionately used by one protected group, for example a contractual right to subsidised use of local crèche facilities that is disproportionately used by its female employees. It decides to remove that right and does so by dismissing and re-engaging. Employer B is in all material respects in an identical position to employer A, save that it has never provided subsidised crèche facilities. Following the change introduced by A, the terms of neither A nor B of themselves place women at a particular disadvantage, but on the basis of the EAT’s conclusion in this case, employer A would need to meet the exacting standard of providing an objective justification for its decision to remove the provision of subsidised crèche facilities; whereas employer B would have nothing to justify. Might this, perhaps, act as an incentive for employers to avoid providing such benefits in the first place?
• An employer identifies potential indirect discrimination in its pay structure in favour of men, placing it at risk of equal pay claims, and implements new terms and conditions to remove that disparate impact in favour of men, so that the new terms and conditions themselves produce no disparate impact. On the EAT’s conclusion in this case, that employer faces the potential prospect of claims by the men alleging that the change has placed them at a particular disadvantage by removing benefits which men previously disproportionately enjoyed. In Edie & others, the employer argued that, since one of its aims was to remove pre-existing discrimination, the means it used were necessarily justified because the apparent disparate impact on older employees was, by definition, the equal and opposite of the previous benefits which they enjoyed and which could not be justified because the employer had itself concluded that they did not need to be maintained. The EAT declined to determine those arguments (para 69) because it was unnecessary to do so in light of its conclusion that the tribunal had in any event reached a permissible conclusion on justification. There may, of course, be legitimate and proportionate reasons for adopting a degree of pay protection when implementing the removal of pre-existing indirect discrimination, but whether it is so is not straightforward (see for example Redcar & Cleveland Borough Council v Bainbridge & ors [2012] ICR 627, CA; Hennigs and Mai v Land Berlin [2012] IRLR 83, CJEU; Specht v Land Berlin [2014] ICR 966, CJEU). The decision of the EAT in this case, therefore, leaves open the possibility that if an employer gets it wrong in one direction and implements too much pay protection, the pre-existing disadvantaged group may have good claims for indirect discrimination; whereas if an employer gets it wrong in the other direction and implements too little pay protection, then the pre-existing advantaged group may have good claims. The danger for employers is exacerbated since, either way, the test for justification requires the tribunal to decide the issue for itself.

These questions remain to be considered should they arise in future cases.

UKEAT/0153/14/DM