Facts

Joanne Allan joined Oakley Builders and Groundwork Contractors Ltd (“Oakley”) on 9 May 2016 as an Administrative Assistant.

She was told in her interview that in the event of there being a redundancy situation there would be a “last in first out” method of selection. In December 217, there was further mention of “last in first out” being used in the event of redundancy.

On 19 July 2018, a cost-cutting exercise was put in place. Employees were pooled, with one (Ms Hamley, a manager) being told that, due to her long service, she would not be selected. Ms Allan was pooled alongside Ms Wise and Ms Zab. Ms Allan was older than these individuals, both of whom were in their 20s. The individual making the selections was Mr Wise, the father of Ms Wise.

Ms Allan was subsequently selected due to her shorter service and was given 2 weeks notice before her employment ended on 24 August 2018.

Ms Allan brought a claim of age discrimination in relation to her selection and dismissal.

Decision

The Employment Tribunal dismissed Ms Allan’s claim.

The Employment Tribunal held that “last in first out” is now “largely discredited” as a means of selection for redundancy. It noted that such a policy can be both indirect sex and age discrimination (women tend to have shorter employments than men, and younger workers have less opportunity to gain service). Neither were relevant in this case - the entire pool was female and Ms Allan was the oldest of the pool.

The Employment Tribunal said that whilst “last in first out” is “not everyone’s first choice” it is not an irrational method to use to select individuals for redundancy. It is entirely objective and avoids having to judge people.

The Employment Tribunal also noted Ms Allan’s allegations that Ms Wise had not been selected due to nepotism. This further undermined a claim of age discrimination as, if this were the case, any difference in treatment would be because of this, and not because of age.

Accordingly, there was no difference in treatment because of age and so the claim was dismissed.

The judgment is available here.

Joanne Allan v Oakley Builders and Groundwork Contractors Ltd, Case number 1403798/2018