The Employment Equality (Age) Regulations 2006 present challenges to some traditional approaches to redundancy exercises, especially to selection on the basis of “last in first out” and the use of enhanced redundancy payments based on service. Unless an employer’s arrangements fall within the specific exemptions set out in the legislation (principally by mirroring the statutory scheme for redundancy payments), justification will be required. This means that the employer will have to demonstrate that the arrangement is a proportionate means of achieving a legitimate aim.

Two recent Employment Appeal Tribunal (EAT) cases demonstrate the rigorous approach that needs to be taken to establishing justification in relation to age based aspects of redundancy schemes.