Key Facts

In Rolls Royce PLC v Unite the Union the High Court has held that giving credit for length of service in a redundancy selection policy could be considered a 'benefit' under Reg 32 of the Employment Equality (Age) Regulations 2006. As such, the policy potentially fell within the exemption from the general prohibition on age discrimination.

As part of a matrix used in redundancy selection each employee was to receive one point per year of continuous service. A dispute arose over whether this length of service criterion complied with the Age Discrimination Regulations. The parties asked the High Court, under Part 8 of the Civil Procedure Rules, to assess the same.

The High Court held that, while the criterion was age discriminatory, it was objectively justified. Part of its Judgment was that the length of service criterion respects loyalty and experience and protects the older workforce from being made redundant at a time when finding alternative employment is harder. The Court did note, however, that its conclusion might have been different had the policy operated on a simple 'last in, first out' basis, which remains a risky policy for employers.

In any event, the High Court went to hold that the agreements would fall within the exemption provided by Reg 32, which provides that the Regulations do not prevent a worker being placed in a better position than other workers by the award of a ‘benefit’ based on length of service.

Comment

Leave to appeal has been given and therefore whether or not length of service criteria in redundancy can be potentially age discriminatory is far from decided. The decision gives some comfort that for the time being provided length of service is used as part of a matrix and provided (ideally) anyone with over 5 years service is awarded the same score, then it will remain difficult for an employee to bring a claim.