Redendancy and service

A. There’s no legal requirement for an employer to retain those with the longest service in a redundancy situation. Length of service is a legitimate factor in selecting staff for redundancy, but it’s not the only one.

In fact, if an employer relies solely on length of service by retaining only the longest serving staff, they may be discriminating against those with shorter service.

“Last in, first out” (LIFO) has been a popular basis for redundancy selection because it is an objective criterion: it’s purely factual and doesn’t require the employer to pass judgment on an individual. It also rewards loyalty to the employer.

But it can indirectly discriminate against individuals on grounds of both age and sex if the employer cannot justify it.

This is because it can disadvantage both younger workers who have joined the workforce more recently, and women, who are more likely to have taken career breaks to have children and consequently have shorter continuous service.

Because of the potential to discriminate, employers are less likely to use length of service as a selection criterion and, if it is used, it may be just one of a number of criteria, or even a tie-break.