Last In, First Out (LIFO)

The current position

'Last in first out' is generally regarded as a safe way of selecting for redundancy. It is objective, there is little scope for argument and tribunals have never questioned its fairness – that is until the Employment Equality (Age) Regulations 2006 (EEAR).

Picking on the shortest serving employees for redundancy tends to mean it is the younger employees who go, so arguably that amounts to indirect age discrimination.

But regulation 32 (1) states it is not unlawful age discrimination to treat somebody less favourably in relation to a benefit because of their length of service; except that age related criteria which excluded someone with more than five years' service from receiving a benefit would need to be justified on grounds that it fulfils a business need, for example by encouraging loyalty, motivation or rewarding experience.