Since the introduction of legislation outlawing age discrimination in 2006 employers have generally been advised that “last in first out” or other service-related criteria for redundancy selection are best avoided.  However certain employers had binding redundancy selection processes, often negotiated with trade unions and often including length of service as one of a matrix of factors to be taken into account in selection for redundancy.

One such employer, Rolls Royce, has received confirmation from the Court of Appeal that while there is clearly an element of age discrimination in using length of service as a selection criterion, it may still be lawful if the employer can show that it is a “proportionate means of achieving a legitimate aim”.

Although the decision is helpful to some employers in a similar position to Rolls Royce, establishing objective justification of a potentially discriminatory practice is a high hurdle.  Employment tribunals will look for hard data to evidence that the criterion does indeed support the employer’s stated legitimate aim, and employers will be well-advised to review this regularly to ensure that their justification remains valid in a changing business environment.

Further reading

Rolls Royce PLC v Unite the Union [2009] EWCA Civ 387

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