Was length of service redundancy selection criterion unlawful?
In order to ensure that any redundancy dismissals are potentially fair, an employer must act fairly and reasonably when determining and applying selection criteria to the relevant pool of employees. This will include ensuring the use of objective criteria which are not directly or indirectly discriminatory on any of the prohibited grounds. Some of the criteria traditionally used by employers are potentially indirectly discriminatory under the Age Regulations, for example “last in, first out” (LIFO) which is likely to have a detrimental impact on younger workers. However, employers may be able to objectively justify the use of such criteria by demonstrating that this is a proportionate means of achieving a legitimate aim. Similarly, pay and benefits based on length of service will amount to indirect age discrimination as older workers are more likely to have completed the required amount of service. However, the Age Regulations provide an automatic exemption for benefits based on length
