In the session this morning I was asked a question by @LinkyTrott and wandered off into a burble. /1

Say an employer needs to furlough staff. They want to put the most expensive staff on furlough first. Those will tend to be the older staff. Might there be indirect discrimination claims? /2

I think that a soft rule that you choose the most expensive staff to furlough is capable of amounting to a PCP. /3

It is applied to employees of all ages. /4

Does it put people in a particular age group at a particular disadvantage? Probably yes, but this is one of those difficult cases where those furloughed and those not might equally claim they are disadvantaged. /5

So let's assume that whether it's younger or older employees complaining they may be able to establish group and individual disadvantage. /6

Can the rule be justified? On one view the legitimate aim is simply "saving costs" and that is, notoriously, not something that will, on its own, justify indirect discrimination /7

You need to find a "plus" for a "costs plus" justification. The point I tried, haltingly, to make is that tribunals are likely to be persuaded that a plus exists where they are persuaded that this is a case where costs savings were about more than making a bigger profit. /8

If an employer convinces a tribunal that business survival depends on it they are more than halfway there. There are a number of cases in which essentially economic aims have been seen legitimate: Benson [2012] ICR 627; Braithwaite [2015] ICR 713;and Harrod [2017] EWCA Civ 191 /9

So one might say the legitimate aim is the survival of the business or the preservation of as many jobs as possible and that reducing costs by the maximum extent is a proportionate means of achieving that aim /10

Or if the employer furloughs fewer but higher paid staff, they may be able to argue that that allowed them to keep more people at work which allowed them to continue to operate more effectively /11

So, there is no bright line answer but if the Tribunal thinks the employer was doing what it could to keep itself alive, there is good read on to think a path to justification would be available. /12

That's all subject to what we understand the SC to have done in O'Brien [013] UKSC 6. /13

What didn't occur to me when answering, is that you may be able to reduce risk by "rotating" the groups furloughed. That might also be something that a "disadvantaged" employee might argue went to proportionality. /end