Amedeo Fasano v Reckitt Benckiser Group PLC & Anor

The Court of Appeal dismissed the appellant's challenge to the Employment Appeal Tribunal's conclusion that Reckitt Benckiser Group plc was not acting as agent for Reckitt Benckiser Health Ltd when it amended the 2015 long term incentive plan (LTIP) rules. The court applied the ordinary common law meaning of "agent" for the purposes of sections 109 and 110 of the Equality Act 2010, requiring authority or assent by the principal and an agent acting on the principal's behalf. The parent company had power to make and amend the LTIP under its own rules approved by its directors and shareholders and there was no evidential basis that the subsidiary authorised the parent to act as its agent.

The court also concluded that the Employment Tribunal was entitled to find that the provision, criterion or practice (PCP) challenged (the requirement to be employed on 18 September 2019 and to remain in employment until the vesting date to benefit from the amended performance condition) pursued the legitimate aim of retention and was a proportionate means of achieving that aim under section 19(2)(d) of the Equality Act 2010. The appeal was therefore dismissed.

Background and factual matrix.

• The appellant, Mr Fasano, was employed by Reckitt Benckiser Health Ltd and was entitled to participate in the Group's 2015 LTIP which would, subject to three-year performance conditions, vest in May 2020. He agreed with his employer that his employment would end on 30 June 2019 and the performance conditions in force at that time were not met, so he received no award.
• On 18 September 2019 the parent company, Reckitt Benckiser Group plc, amended the LTIP rules so that participants employed as at that date would receive 50% of their award irrespective of the original earnings-per-share performance conditions. The appellant was not employed on 18 September 2019 and was therefore excluded from the amended entitlement.

Nature of the claim and procedural history.

• The appellant brought a claim in the employment tribunal alleging indirect discrimination on grounds of age contrary to sections 19 and 39 of the Equality Act 2010, and argued that RB Group acted as agent for RB Health so that sections 109 and 110 rendered both companies liable. The employment tribunal found agency and concluded the PCP pursued a legitimate aim (retention) and was proportionate, dismissing the claim.
• On appeal the Employment Appeal Tribunal ([2024] EAT 7) held that the PCP could not be justified but concluded RB Group was not the agent of RB Health and therefore dismissed the appeal. The present appeal was brought to the Court of Appeal by the appellant; the respondents advanced a respondent's notice contending alternatively that the PCP was justified.

Issues framed by the court.

1. Whether RB Group was acting as agent of RB Health when it amended the LTIP rules, such that section 109(2) and section 110 of the Equality Act 2010 could attach liability to RB Health and/or RB Group.
2. Whether the PCP (requiring LTIP participants to be employed as at 18 September 2019 and to remain in employment to benefit from the amended performance condition) could be justified as a proportionate means of achieving a legitimate aim (retention) under section 19(2)(d) of the Equality Act 2010.

Court's reasoning and conclusion.

• On agency, the court applied the ordinary common law concept of agency (Bowstead & Reynolds and authorities such as Kemeh, Blackwood and Unite the Union v Nailard). It held that authority or assent by the principal for the agent to act on its behalf is required. RB Group's power to make and amend the LTIP derived from its own rules approved by its directors and shareholders; there was no evidential basis that RB Health authorised RB Group to act as its agent in making the changes. The corporate separateness of parent and subsidiary and absence of control or manifestation of assent led to the conclusion that RB Group was not RB Health's agent.
• On justification, the court accepted that the PCP must be assessed as a whole. The requirement to be employed as at 18 September 2019 and to remain in employment until the vesting date was directed to retaining employees through the period to May 2020 and therefore pursued the legitimate aim of retention. The Employment Tribunal was entitled to find this PCP a proportionate means of achieving that aim.

Procedural note: the court observed the decision concerned post‑employment conduct (changes made after termination of employment) and that different facts within employment might yield different results, but declined to remit and dismissed the appeal.

Appeal dismissed. The Court of Appeal held that (1) for the purposes of sections 109 and 110 of the Equality Act 2010 the ordinary common law meaning of "agent" applies and on the facts there was no evidence that RB Health authorised RB Group to act on its behalf in amending the LTIP rules, so RB Group was not RB Health's agent; and (2) the Employment Tribunal was entitled to conclude that the PCP (employment as at 18 September 2019 and remaining until the vesting date) pursued the legitimate aim of retaining staff and was a proportionate means of achieving that aim under section 19(2)(d) of the Equality Act 2010.

Appeal from the Employment Appeal Tribunal (His Honour Judge Shanks) [2024] EAT 7; original claim decided by the employment tribunal (decision referenced in the judgment; the employment tribunal dismissed the claim). This appeal was heard in the Court of Appeal resulting in judgment [2025] EWCA Civ 592.