Amedeo Fasano v Reckitt Benckiser Group PLC & Anor

For indirect discrimination, the provision, criterion or practice must be assessed as a whole and in its factual context. A condition requiring employees to remain in post until a specified date may contribute to the legitimate aim of staff retention, even if an earlier eligibility date forms part of the condition. The justification question concerns the specific PCP, but its practical operation must be considered in context. For statutory agency provisions using ordinary common-law concepts, a parent company is not an agent of a subsidiary merely because a scheme operated by the parent benefits the subsidiary’s employees. Agency requires the principal’s express or implied assent to the agent acting on its behalf, and the relevant authority must be identified. Separate corporate personality and the absence of authorisation or control may point against agency, although control is not essential.

The appellant, a former senior employee of RB Health, participated in a long-term incentive plan established and amended by RB Group. After his employment ended, RB Group amended the plan so that employees in post on 18 September 2019 could receive 50% of an award despite unmet performance conditions. The appellant claimed indirect age discrimination under sections 19 and 39 of the Equality Act 2010. He alleged that RB Group acted as RB Health’s agent, engaging sections 109 and 110.

The employment tribunal found agency but held the PCP justified. The Employment Appeal Tribunal held that there was no agency and that the PCP was not justified, but dismissed the claim on agency grounds. The appellant appealed on agency and statutory construction. The respondents sought to uphold the decision on justification. The central issues were whether RB Group was RB Health’s agent and whether the PCP was a proportionate means of achieving a legitimate aim.

1. Appeal dismissed. RB Group was not acting as RB Health’s agent when its remuneration committee amended the LTIP. RB Health was not liable as principal under section 109(2) of the Equality Act 2010. The alleged agency relationship also could not found the claim against RB Group under section 110.
2. Sections 109 and 110 use agency in its ordinary common-law sense. The relevant relationship requires the principal expressly or impliedly to assent to the agent acting on its behalf, and the agent to assent to do so. The fact that an act benefits another company, or affects the legal relationship between that company and its employees, is insufficient. A parent and subsidiary remain separate legal entities, and agency must be demonstrated by the usual criteria. Control may be relevant but is not essential.
3. RB Group’s authority to make and amend the LTIP came from rules authorised by its own shareholders and directors. There was no evidence that RB Health authorised RB Group to act on its behalf, or that RB Group manifested assent to do so. The employment tribunal had treated legal conclusions as findings of fact. The EAT was correct to reject agency.
4. A purposive approach to statutory construction does not permit a court to enlarge a statutory concept beyond its legitimate meaning because that would better advance the statute’s broad objective. Purpose may guide the choice between two equally plausible meanings, but cannot create an additional meaning. The employment tribunal had reached the wrong legal conclusion under section 109, although it had not simply expanded the statutory words to serve the statutory purpose.
5. On justification, section 19(2)(d) required the specific PCP to be justified, but the PCP had to be understood as a whole. Requiring LTIP participants to be employed on 18 September 2019 in order to benefit from the amended performance condition meant that they also had to remain employed until May 2020, subject to limited leaver provisions. The PCP could therefore contribute to staff retention. The employment tribunal was entitled to find that it was a proportionate means of achieving the legitimate aim of retention.
6. The decision was confined to alleged discrimination arising from conduct after employment had terminated. A different result might follow where an employer applies rules made by another entity during the employment, but that issue did not arise and was not decided.

• Court of Appeal (Civil Division) — [2025] EWCA Civ 592: appeal dismissed. The court upheld the dismissal of the claim, agreeing that RB Group was not RB Health’s agent and that the PCP was justified.
• Employment Appeal Tribunal — [2024] EAT 7: allowed the appellant’s appeal on justification and the respondents’ cross-appeal on agency, but dismissed the claim because neither respondent was liable.
• Employment Tribunal — dismissed the indirect age-discrimination claim, finding agency but holding that the PCP was a proportionate means of achieving the legitimate aim of staff retention.