Q. "I have used ‘last in first out’ to select which employees to make redundant, but one of my younger workers has brought an Age Discrimination claim. Can ‘last in first out’ be discriminatory?"
A. Age discrimination is not just about protecting older workers. Many assume only older workers are protected by the 2006 regulations outlawing discrimination on the grounds of age. But employees of all ages can claim that they have been discriminated against because of their age.
Redundancy selection based on length of service is considered discriminatory because younger workers tend to have shorter periods of service and therefore are more likely to be selected. This is why ACAS advises against using ‘last in first out’ as a selection criterion.
As an employer you can defend an age discrimination claim by arguing your selection policy was justified on objective grounds which are not related to age. However, the policy must have a "legitimate business aim", for example to reward loyalty. And the operation of the policy must also be an "appropriate and necessary" means of achieving that aim.
Given the availability of other 'age neutral' criterion such as disciplinary or attendance records, it will be difficult to establish that a selection policy based on length of service alone is appropriate and necessary – especially if it results in the selection of predominantly young employees.
However, using length of service as just one of a number of selection criteria is permissible providing its use can be justified and it is not given a disproportionate weighting.
The recent case of Rolls Royce v Unite the Union held that length of service as a criterion was justified because it rewarded staff for loyalty and experience not reflected in the other criteria. In the court's view, because length of service was just one of six different criteria used to select employees for redundancy, it represented a "sophisticated and measured" selection policy rather than the "blunt tool" of ‘last in first out’.
Although there may be exceptional cases where selection by ‘last in first out’ could be justified, these are likely to be limited to where there are no other distinguishing factors between employees apart from length of service.