Court of Appeal
A length of service criterion as part of the redundancy selection terms in a collective agreement could be a proportionate means of achieving a legitimate aim for the purposes of the Employment Equality (Age) Regulations 2006 reg.3.
The appellant employer (R) appealed against a decision ((2008) EWHC 2420 (QB), (2009) 1 CMLR 17) that a length of service criterion as part of the redundancy selection process under a collective agreement between R and the respondent trade union was not unlawful under the Employment Equality (Age) Regulations 2006. There were two collective redundancy agreements in place between R and the union within R's Derby group of factories. Both contained provisions for length of service as a selection criterion within the redundancy matrix. An employee received one point per year of continuous service. R brought a Part 8 claim against the union for a determination by the court as to whether the inclusion of length of service within the selection matrix for redundancy was in breach of the Employment Equality (Age) Regulations 2006. The judge held that R would have a defence to an age discrimination claim under reg.3 on the basis that the collective redundancy agreements pursued a legitimate business aim. In any event giving points for long service in the redundancy selection matrix conferred on the employee concerned a "benefit" within the exception provided for in reg.32. R submitted that (1) it was a proper exercise of the court's discretion to grant declaratory relief in the unusual circumstances of the instant case where a party brought proceedings before the courts relating to matters involving statutory construction which had an impact on a collective agreement; (2) the judge had focused on the scope and definition of the legitimate aim, and had not considered the question of proportionality either properly or at all; the mere fact that the service-related criterion was enshrined within a collective agreement was not determinative; gaining points for length of service in a redundancy situation was not a "benefit" within reg.32.
HELD: (1) The court should entertain the appeal. It was being asked to construe a statutory instrument deriving from Directive 2000/78. The interpretation of material emanating from Parliament was both a matter of public importance and one of the court's proper functions. Although the proceedings were private as opposed to public law proceedings, and although there was no immediate lis between the parties, the point was not academic, and if not resolved by the court would lead to a dispute between R and the union, who did not agree on it, Kay v Commissioner of Police of the Metropolis (2008) UKHL 69, (2008) 1 WLR 2723 considered. The point was one of some importance, and was likely to affect a large number of people both employed by R and beyond. It would be unduly purist for the court to decline to adjudicate on a point which had been brought before it by means of a procedure which had been deemed by the parties and by the court below to be appropriate. If necessary the case could be regarded as exceptional, Gawler v Raettig (2007) EWCA Civ 1560 considered. (2) The length of service criterion potentially involved indirect discrimination on grounds of age. For the purposes of the Directive and Regulations a length of service criterion could be a legitimate aim of redundancy selection terms, especially where it was part of a collective agreement. The judge did not in terms deal with proportionality but, viewed objectively, the inclusion of the length of service criterion was a proportionate means of achieving a legitimate aim. It was not necessary to reach a view on the interpretation of reg.32. However, the court's provisional view was that an award of points based on length of service constituted the award of a "benefit" for the purposes of reg.32.
 ICR 1,  IRLR 576, (2010) 1 WLR 318
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