Length of Service Acceptable Criterion in Redundancy Selection

Under the Employment Equality (Age) Regulations 2006 it is unlawful for an employer to discriminate directly against an employee by treating them less favourably than others because of their age, where it cannot be justified. It is similarly unlawful to indirectly discriminate by applying a provision, criterion or practice that disadvantages employees of a particular age, where it cannot be objectively justified. The Regulations include a number of exceptions, whereby an employee may treat employees differently in reflection of their length of service. 

The Court held in Rolls Royce PLC v Unite the Union that length of service criterion is a benefit and age discriminatory. However, they also held that it was objectively justified in that instance. The legitimate aim was to reward loyalty and create a stable workforce in the context of a fair redundancy selection process. It was proportionate to use length of service as a criterion as it was just one of many criteria used and was not itself determinative of the selection.