Age 





Age discrimination in redundancy selection can be lawful but only if it can be objectively justified as a necessary and proportionate means of achieving a legitimate aim (see also Chapter 7, pages 204 and 257).
Reps should challenge the choice of age-related selection criteria and ask the employer to justify their use, with specific evidence-based reasons rather than generalisations.
An age discriminatory solution is more likely to be judged by a tribunal to be proportionate if it follows proper consultation with a recognised union (HM Land Registry v Benson [2011] UKEAT/0197/11). 




Last in, first out




Many agreed redundancy procedures use “last-in-first-out” (LIFO) as a selection criterion. It favours those with longer service. LIFO agreements have been challenged because of the risk of discrimination against younger, female and ethnic minority workers, who may have less continuous service. 


The EHRC says that LIFO can be one of a range of selection criteria but that on its own, or as the most important criterion, it is open to challenge as unlawful discrimination.
In Rolls Royce PLC v Unite [2008] EWCH 2420, general union Unite challenged a decision to remove LIFO from the Rolls Royce redundancy selection criteria. The High Court said that length of service can be a fair indicator of loyalty and experience that is not necessarily reflected by other selection criteria. The court agreed with Unite that using LIFO, while age discriminatory, could be justified in this case because it reasonably fulfilled the business need to maintain a loyal and stable workforce. 





The court also found that using LIFO could help achieve a peaceable selection process. A more recent ruling has confirmed that although the need for industrial harmony can help justify age discrimination, it cannot be the main or only justification (Kenny v Ministry for Justice [2012] EUECJ C-427/11).