Age Regs: Length of Service Can Count in Redundancy Selection

The Court of Appeal has upheld a landmark tribunal ruling that it is lawful to use length of service as a criterion in redundancy selection processes. The case had been brought by the trade union ‘Unite’ against Rolls Royce and is one of the first cases on age discrimination to be considered by the higher courts.

For many years Rolls Royce had operated a redundancy selection procedure in agreement with Unite - the recognised union at the company - which included length of service as one of six criteria used in its redundancy selection process. But despite objections by Unite, Rolls Royce made an application to the High Court seeking a Declaration that the use of length of service as one of the redundancy selection criteria discriminated against younger members of the workforce who had less opportunity to accrue length of service and was therefore unlawful under the Age Regulations.

Rolls Royce’s application was disputed by Unite through its solicitors Thompsons on the basis that length of service was an objective and generally accurate measure of the loyalty and expertise of employees.

Unite further asserted that the older and longer serving members of the workforce required a degree of additional protection in a redundancy selection exercise since they were likely to find it more difficult to secure alternative employment if made redundant. Finally, Unite pointed out that the collectively agreed criteria, including length of service, had the jointly agreed objectives of the achievement of redundancies in a fair, transparent and peaceable manner.

The High Court rejected Rolls Royce’s application in October 2008 and Rolls Royce appealed to the Court of Appeal. The Court of Appeal rejection of Rolls Royce’s appeal makes it clear that it is lawful for employers to use length of service as one of a number of criteria when selecting employees for redundancy.

Unite’s joint general secretary, Derek Simpson said: “We are delighted with this decision. The ruling sets a precedent , where other factors are equal, for protecting older workers from the effects of redundancy. It has always been clear to Unite that loyalty seen in length of service should be recognised when an employer takes the drastic step of making redundancy dismissals. We look forward to using this decision to help defend our members’ rights in many other companies as well as Rolls Royce.”

Paul Evans of Thompsons Solicitors commented: “In the current economic climate this is a timely judgment from the Court of Appeal. Employers should take note and realise that they should not seek to renegotiate or go back on longstanding agreements with trade unions about how redundancies should be dealt with.”

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