Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Shared parental leave
    • Redundancy
    • Maternity & Paternity
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Shared parental leave
    • Redundancy
    • Maternity & Paternity
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Employment lawRedundancy

Last in, first out on its last legs: legal opinion

by Paula Bailey 28 Nov 2008
by Paula Bailey 28 Nov 2008

Length of service has long been a central feature of any redundancy selection exercise. However, following the introduction of the Employment Equality (Age) Regulations in October 2006, use of last in, first out, which clearly relates to length of service, has been challenged in the courts. Should employers continue to use length of service as a selection criterion? Although there has been a trend for employers to shy away from length of service, it can be valuable tool when selecting for redundancy if used as part of a balanced and measured selection criteria.

Under the age regulations, selection policies based on length of service can be indirectly discriminatory. Younger employees who naturally have shorter period of service, will be more likely to be selected, although in practice this will depend on the age profile of the particular employer’s workforce. Therefore, employers have to now justify using length of service as a criterion to select employees for redundancy.

To succeed, the selection policy must have a legitimate business aim, for example, to reward loyalty or to retain experienced workers. Furthermore, the operation of the policy must be an “appropriate and necessary” means of achieving those aims. Given the availability of other ‘age neutral’ criteria, such as disciplinary or attendance records, an employer that bases its selection mainly on length of service will have difficulty establishing that the policy was “appropriate and necessary”. This will especially be the case where the policy results in the selection of predominately young employees, as one age group is disproportionately affected.

In Rolls-Royce plc v Unite the Union (2008), Rolls-Royce claimed that its redundancy selection policy, which awarded points for length of service, was contrary to the age regulations. However, length of service was only one of a number of different criteria used by Rolls-Royce to select employees and was not given a disproportionate weighting. Unite argued that it was a “sophisticated and measured” selection policy and not the “blunt tool” of last in, first out.

The High Court agreed with the union and held that the policy was justified under the regulations. The court then went on to decide that the selection policy also fell within the length-of-service exemption that allows employers to award benefits to its workforce based on their length of service. In its view, the possibility of retaining a job was a ‘benefit’ under the regulations. However, the court did comment that had it been asked to judge a redundancy selection policy based on last in, first out alone, such a procedure may have been “objectionable”.

Last in, first out’s days as a selection criterion are clearly numbered and it is likely that only in exceptional cases will its use be justified, for example, where there are no other distinguishing factors between the employees apart from their length of service, or as a ‘tie-breaker’ where a selection process has already been conducted based on other criteria.

However, using length of service as just one of a balanced selection criteria is unlikely to breach the age regulations, as the Rolls-Royce case has shown that it is a criterion which is capable of justification. Furthermore, unions are generally keen on using length of service – possibly because longer serving employees are more likely to be union members – and, therefore, including length of service as a criterion may well also help facilitate the consultation process in a redundancy exercise.

Key points

  • Employers should use a variety of different criteria to select employees to be made redundant.
  • Selection criteria should not disproportionately affect one particular age group.
  • Length of service should not be the sole or main criterion.
  • Using length of service as one criterion in a balanced selection policy is unlikely to breach the age regulations.

Paula Bailey, partner, Howes Percival




Avatar
Paula Bailey

previous post
Friday podcast: Awards 2008, discrimination by association, and “fit notes”
next post
Interview with Guy Pink

You may also like

P&O Ferries boss denies reputational damage after mass...

27 May 2022

Employers lack data to make IR35 worker status...

25 May 2022

Maternity leave: Cost of living crisis highlights need...

25 May 2022

Tube strike on 6 June to see 4,000...

24 May 2022

One in five employers planning ‘no jab no...

19 May 2022

MP demands timeline on carer’s leave legislation

13 May 2022

Prime minister steps up calls for 90,000 civil...

13 May 2022

Queen’s Speech: absence of employment bill leaves organisations...

10 May 2022

Morrisons saves 16,000 jobs with McColl’s rescue deal

10 May 2022

Queen’s Speech: Exclusivity contracts for low-paid workers to...

9 May 2022
  • Strathclyde Business School expands its Degree Apprenticeship offer in England PROMOTED | The University of Strathclyde is expanding its programmes...Read more
  • The Search for Talent: Six Major Employer Pitfalls PROMOTED | The Great Resignation continues unabated...Read more
  • Navigating the widening “Skills Confidence Gap” in 2022, and beyond PROMOTED | Cornerstone OnDemand conducted a global study...Read more
  • Apprenticeships are the solution to your recruitment problems PROMOTED | Apprenticeships have the pulling power...Read more
  • What it really means to be mentally fit PROMOTED | What is mental fitness...Read more
  • How music can help to ease anxiety at work PROMOTED | A lot has happened since March 2020, hasn’t it?...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2022

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2022 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Shared parental leave
    • Redundancy
    • Maternity & Paternity
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+