19 May 2009
In the recent case of Rolls Royce PLC -v- Unite the Union, the Court of Appeal has confirmed that it is lawful, under age discrimination legislation, for employers to use length of service as one of a number of criteria when selecting employees for redundancy.
Rolls Royce had entered into collective agreements with Unite, the recognised trade union at the company, which set out the agreed approach to be adopted in a redundancy situation. The agreed redundancy selection procedure included length of service as one of six criteria and one point was awarded for each year of continuous service. A dispute arose as to whether this criterion complied with the Employment Equality (Age) Regulations 2006 and Rolls Royce applied to the High Court for a declaration on this issue.
The company argued that it would be indirectly age discriminatory to allow length of service to be used as one of the selection criteria as it was to the benefit of older workers. Unite’s position was that, even if length of service was discriminatory, it could be objectively justified and argued that the criterion fulfilled a business need as it measured the loyalty and expertise of older employees giving them the “benefit” of additional protection in a redundancy selection process.
The High Court ruled that taking length of service into account when selecting employees for redundancy is discriminatory against younger members of the workforce who would have less opportunity to accrue long service. However, the Court held that the selection criteria under the redundancy scheme could be objectively justified as it was a proportionate means of achieving the legitimate aim of carrying out compulsory redundancies “peaceably”.
This useful decision from the Court of Appeal confirms that length of service can be used as one of a number of redundancy selection criteria without being age discriminatory, providing that the Employer can prove that the service-related selection criterion is justified and reasonably fulfils a business need.
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