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Indirect Age Discrimination

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 Thanks to Naomi Cunningham of Outer Temple Chambers for preparing this case summary

If an employer introduces contractual changes, can those changes themselves be regarded as a provision, criterion or practice (PCP)?

Yes, held the EAT in Edie v HCL Insurance.

HCL had acquired employees with widely varying employment conditions after a series of transfers. They decided to harmonise their terms of employment by introducing compulsory new contracts; those who refused to sign were dismissed.

Ms Edie and others argued that the change put them at a particular disadvantage compared to their younger colleagues, because before the change they had benefited disproportionately from the more valuable contractual rights that were being abolished. HCL relied on ABN Amro Management v RBS to argue that the change could not be a PCP; the PCP was the new contract, which did not in itself disproportionately disadvantage older employees.

The EAT distinguished ABN v RBS, relying on the difference between a mere change between two inherently non-discriminatory policies (as in ABN) on the one hand; and the imposition of a choice between accepting new terms and being dismissed on the other. But the claim still failed, because the EAT also upheld the employment tribunal's finding that the operation of the PCP was justified.