An employee of a UK subsidiary may only claim age discrimination under a share plan operated by an overseas parent if the overseas parent has aided and abetted an act of unlawful age discrimination by the UK subsidiary.
Dr Hung was a former employee of Kellogg Brown & Root (UK) Limited (“KBR”), the UK subsidiary of US-based parent, Halliburton Company (“HC”).
During his employment with KBR, Dr Hung received several restricted share awards and share options under HC’s global share plan. Under the award and option documentation Dr Hung was referred to as an employee of HC for the purposes of the share plan.
In 2007 Dr Hung’s employment with KBR terminated by reason of redundancy. Under a term in the share plan Dr Hung could only retain his share awards and share options if his combined age and length of service equalled at least 70 years.
In the preliminary hearing, the employment tribunal found that Dr Hung was an employee of KBR rather than HC. Accordingly, HC would only be liable for age discrimination if:
- KBR had unlawfully discriminated against Dr Hung; and
- HC had knowingly aided KBR’s unlawful age discrimination.
If these conditions were satisfied, HC could be treated as committing unlawful age discrimination under Regulation 26 of the Age Regulations.
It is common for parent companies of multi-national groups to provide share awards for employees of subsidiary companies in other countries. Such share plans are normally operated by the parent with little or no input from subsidiaries on either the rules of the plan or the terms of the awards for particular employees.
This case demonstrates that it may be extremely difficult for employees and former employees of UK subsidiaries to bring an age discrimination claim in relation to share plans offered by overseas parent companies.
Dr S Hung v (1) Kellogg Brown & Root (UK) Limited (2) Halliburton Company