On the 28th November last year I posted on the above case, which was heard in the High Court, on the redundancy criteria used by Rolls Royce when selecting candidates for redundancy. Please see that post for more details of the criteria used. The interesting point about this particular case is that it looked at the interplay between redundancy selection criteria and the Age Discrimination legislation. Rolls Royce were seeking a declaration from the Court that their redundancy criteria, which added one point per year of service to individual employees’ scores (in addition to the scores they received for various other criteria) WAS in breach of the Age Discrimination regulations. This is because employees with longer service would get more points and was thus indirectly discriminatory towards younger employees.
The case then went to the Court of Appeal, which upheld the High Court’s decision. The result of this case is that it is not a breach of the age discrimination to award employees points for length of service. Those regulations do provide that an employer may justify a policy that is, on the face of it, age discriminatory, provided they can justify the reason for the policy. The High Court viewed rewarding loyalty to longer serving staff and recognising that older employees would probably struggle more to get new employment than younger people as sufficient justification.
The rather unusual factor here was that it was Rolls Royce seeking to overturn its agreed redundancy policy and wanted the court to find that its policy was in breach of the age discrimination regulations. The company clearly wanted more flexibility in being able to select candidates than its policy allowed and it was the Union that was defending the existing policy, which it had negotiated on behalf of its members in less difficult times.
Ultimately this decision is probably going to be of limited value apart from in large companies that have collective agreements with their (unionised) workforces that have been in place for some time and pre-date the introduction of the Age Discrimination regulations in 2006. In those situations it will be of help to the older worker. Elsewhere the situation is likely to remain the same. What this decision doesn’t allow is for older employees to claim positive discrimination in their favour. The redundancy selection criteria used by employers is open to challenge in all cases, if an employee thinks they have been discriminated against on grounds of age (or other discriminatory factor) but this result is likely to be of academic interest only.
It would, perhaps, have carried more weight if it had been the decision from the Court of Appeal following a case that had been heard before an Employment Tribunal and then the Employment Appeal Tribunal, rather than a rather “academic” analysis of the law by the High Court but, nonetheless, it is a useful addition to the employee’s (and Claimant’s solicitor’s armoury