Getting older presents one with a number of oddities to deal with. Just how much chestnut rinse looks ‘natural’? (The answer, of course, is none.) Where is the door to my office? That kind of thing.

What is unfortunate is that the Employment Equality (Age) Regulations 2006 provide a few more oddities to deal with. One such is: how does a piece of legislation protect the interests of both those who are ‘younger’ and those who are ‘older’ at the same time – especially when those who are younger are always getting older and providing a ‘moving target’.

Nowhere perhaps has this been thrown into more stark relief than when considering objective selection criteria for redundancy. Many employers have relied for years on the concept of LIFO (‘last in, first out’) when considering who should go. This has also been popular with unions, as the idea that those who have been there the longest should be saved is not only objective but also has an air of fairness about it.

The problem with the regulations is that they have caused companies to question whether LIFO is in breach of the regulations by favouring those with longer service (who are statistically likely to be older). Unpopular as it is with some employers, this has led some to try and use the regulations to justify a choice of different criteria at the outset and others to try and exclude it from their existing schemes.

But is this retreat from a LIFO-type approach really necessary or appropriate? Well, probably not, according to the Court of Appeal in the recent case of Rolls Royce v Unite [2009] EWCA Civ 387. Here, Rolls Royce had sought to discontinue its practice of awarding points for length of service in its selection process. Unite, the union, was opposed to the change. The union having succeeded at first instance, Rolls Royce appealed.

In deciding to disallow the employer’s appeal (and, accordingly, that awarding points for length of service may be lawful), the Court of Appeal focused both on a justification argument and on the interpretation of regulation 32. This regulation sets out an exception for the provision of certain benefits. Essentially it permits length of service to be used in deciding who receives certain benefits (for example, health insurance) over a period of up to five years’ service, after which the employer would need to show a ‘business need’ to justify taking extra service into account (that is ‘rewarding experience’). As it happened, the court did not need to reach a view on the interpretation of regulation 32, but its provisional view was that the regulation could apply equally to less tangible benefits such as selection criteria.

Of perhaps greater significance though, was the court’s view that while the use of length of service here may be indirectly discriminatory, it could be justified as it was felt that the use of the criteria in this context would be a proportionate means of achieving a legitimate aim, for example rewarding the loyalty of certain workers.

Undoubtedly, the fact that this was not the sole criterion in play but one of several impressed the Court of Appeal and the decision cannot be seen as a licence to go back to a fairly stark LIFO approach of yesteryear. It will therefore be a disappointing decision for those employers who wish to use the regulations to justify an abandonment of a LIFO-type approach in their existing selection process. Sadly, it’s not looking good for those who wish to move towards FIFO (‘fit in or eff off’) either!

Darren Clayton, Doyle Clayton, London