Case law: Employer changing terms of employment to detriment of older employees can be indirect age discrimination
An employer's changes to employees' terms and conditions that disadvantaged older employees was a provision, criterion or practice that could amount to indirect age discrimination.
This update was published in Legal Alert - March 2015
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There is indirect age discrimination if an employer operates a provision criterion or practice (PCP) which particularly disadvantages people of a particular age, but it can be justified if it is a 'proportionate means of achieving a legitimate aim'.
The Employment Appeal Tribunal ruled that a requirement to accept new terms was a PCP, but also ruled that it was a proportionate means of achieving a legitimate aim. It said the Employment Tribunal (ET) had carried out a critical evaluation of whether the PCP was objectively justified. The ET:
- Had properly identified 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.
- Was aware of the effects of the PCP on the employees and balanced its needs against the effect of the changes on the employees.
- Was aware of the alternatives proposed by the employees but was entitled to conclude those alternatives would not enable it to achieve its legitimate aim.
- Employers changing employees' terms and conditions that disadvantage older employees are operating a provision, criterion or practice that can amount to indirect age discrimination and must justify it as a proportionate means of achieving a legitimate aim for it to be lawful.
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