Mr A Fasano v Reckitt Benckiser (UK) Limited and 1 other — 2022

Mr Fasano had been employed by Reckitt Benckiser Health Limited since 1997 and retired on 30 June 2019 under a retirement agreement that treated him as a good leaver for the 2017 LTIP. On 18 September 2019 the Reckitt Benckiser Group plc remuneration committee amended the 2017 LTIP so that the relaxed performance conditions applied only to participants who were still employees on that date and, in practice, only if they remained employed to May 2020. The claimant was no longer employed on 18 September 2019, so the amendment did not apply to him and his award lapsed under the original terms.

The tribunal held that the first respondent acted as agent of the second respondent in operating and amending the LTIP, so the second respondent was treated as having done the act and the first respondent was also liable under the EqA if discrimination had been made out. It rejected any separate case of knowing help. The tribunal also accepted that the claimant had identified a PCP requiring LTIP participants, other than existing bad leavers, to be employed on 18 September 2019, or alternatively in May 2020, to benefit from the amended performance condition, and it found that the PCP was applied to him.

On disadvantage, the tribunal accepted the claimant's statistical case and found that employees aged 57 and over were at a particular disadvantage compared with employees under 57. It then considered justification. It rejected incentivisation as the actual aim pursued, but accepted retention as the real legitimate aim, taking account of the projected LTIP underperformance, RB 2.0, and the change of CEO. It held that requiring employees to remain employed as at the decision date was proportionate to that aim, even though there were anomalies, including six employees who had already signed leaver agreements but were still employed on 18 September 2019 and the exclusion of former employees such as the claimant.

The tribunal found the claim was not brought within the primary limitation period because the PCP was the 18 September 2019 decision, not the later loss of the award or the refusal to make an exception in April 2020. However, it extended time on the just and equitable basis, noting that the claimant did not learn of the amendment until April 2020 and that the respondents suffered no significant prejudice. The claim nevertheless failed on the merits, so the provisional remedy hearing was not required.