Resisting discriminatory changes to terms and conditions

An employer’s demand that employees agree cuts to their terms and conditions or else face dismissal is a “provision criterion or practice” (PCP) capable of being indirectly discriminatory. Where changes impact less favourably on a protected group, the employer’s actions must be objectively justified in order to avoid breaking the law (Braithwaite v HCL Insurance BPO Services Limited [2015] UKEAT/0152/14). Reps should make sure equality issues are embedded in any consultation on contract change. To avoid a claim, the employer must be able to produce persuasive evidence of:

• a genuine business need for the change, with proper supporting evidence, including the relevant facts and figures;

• genuine consultation;

• proper consideration of all the reasonable alternatives put forward, explaining why any suggestion is not feasible;

• careful balancing of the negative impact on affected workers as against gains to the business.

In the case of a public sector employer or where a private sector employer provides public services, reps can also build arguments based on the Public Sector Equality Duty. An equality impact assessment is the best way of assessing the likely impact of proposed change on disadvantaged groups (see page 194).