How LIFO (last in, first out on redundancy) fares under ageism laws is a subject with far-reaching impact for local government lawyers.

LIFO is an old hand, having been around long before the Employment Equality (Age) Regulations 2006 S.I. 2006 No 1031 (in force since 1 October 2006) were even a twinkle in the legislative eye. Its friends will therefore be pleased that LIFO has recently emerged intact from a testing encounter with the Court of Appeal on 14 May 2009 (see Rolls-Royce plc v Unite the union [2009] EWCA Civ 387). Wall LJ and Arden LJ delivered the majority judgments, with Aikens LJ dissenting.

Regulation 3 of the 2006 regulations (transposing article 2 of council directive 2000/78/EC on equal treatment) prohibits age-related discrimination if the treatment or the provision, criterion or practice cannot be shown to be ‘a proportionate means of achieving a legitimate aim’. In the present case, the applicable collective agreements (in effect since 1 November 2003) provided that, in relevant circumstances, ‘length of service with the company will be the deciding factor and the longest serving employee will be retained’. Rolls-Royce argued that a selection process including length of service was likely to favour older employees. Consequently, this was said to constitute indirect discrimination within regulation 3 in any dismissal based on redundancy.

However, the majority Court of Appeal took the view that LIFO was lawful. Wall LJ noted ‘a certain irony in the present case, in that "age" discrimination conventionally falls to be considered in the context of discrimination against the elderly, whereas the opposite is the case here’. He nevertheless noted that ‘irony is not a principle of statutory construction’ and ‘indirect discrimination on the grounds of youth can still be discrimination’.

In his judgment, the directive is to be construed as a working document designed to cater for good employment practice through the EU. It therefore falls to be construed in a ‘practical and realistic’ manner. So while he was ‘content to assume’ that regulation 3 applied to establish indirect discrimination, nevertheless, ‘viewed objectively, the inclusion of the length of service criterion is a proportionate means of achieving a legitimate aim’, that is ‘the reward of loyalty, and the overall desirability of achieving a stable workforce in the context of a fair process of redundancy selection’. And the ‘proportionate means’ aspect was, in his view, ‘amply demonstrated by the fact that the length of service criterion is only one of a substantial number of criteria for measuring employee suitability for redundancy, and that it is by no means determinative’. He also considered that the length of service criterion was ‘entirely consistent with the overarching concept of fairness’.

So where LIFO has been the practice, long-serving employees are likely to be relieved at this decision.

Council liable for defective NHS equipment?When a local authority care worker is injured on a defective ramp, installed some years ago by the NHS, is the authority liable for the injury? No, said the majority of the House of Lords on 20 May in Smith v Northamptonshire County Council [2009] UKHL 27 (Lord Mance, Lord Neuberger and Lord Carswell; Lord Hope and Baroness Hale dissenting).

The appellant care worker had worked for the council for many years. In the course of her employment, she had, for some eight years, been taking one of her clients (Mrs Cotter) to a day centre three times a week. While the ramp had been installed by the NHS some 10 years previously, the council had carried out its own assessment for the purpose of ensuring Mrs Cotter’s safety. Although council employees were trained to perform a visual check of the ramp each time they visited Mrs Cotter’s premises, the ramp had not, before the accident, been found to have been in an obvious state of disrepair.

The House of Lords had to decide whether the council was liable under the Provision and Use of Work Equipment Regulations 1998 (S.I. 1998 No. 2306). Regulation 5(1) requires every employer to ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair. The Court of Appeal had allowed the council’s appeal from the court below because, among other things, the ramp had been installed by people other than the council’s own employees and the council had no ability to maintain it.

In the view of Lord Mance, dismissing the appellant’s appeal, there must be ‘some specific nexus (beyond the mere fact of use)... between the equipment and the employer’s undertaking, before the employer comes under the strict responsibilities imposed by the regulations’. He considered that the test was whether the work equipment was incorporated into and adopted as part of the employer’s undertaking. In this case, the council did not provide, own or possess the ramp and, indeed, had no responsibility or right without more to repair it.

Although the council had inspected Mrs Cotter’s home and identified the means of access where the ramp stood, the council had observed nothing amiss because any defect was latent. In Lord Mance’s view: ‘What that shows is that the council was careful, not that it controlled the ramp or incorporated it into its undertaking, or should be strictly responsible for any defect in it.’

While Lord Hope (in the minority) had held that that there was a sufficient element of authorisation and control or ‘consent and endorsement’ of the employee’s use of the ramp for regulation 5(1) to apply, the approach of Lord Mance does seem much more fair. Although the outcome may (as Baroness Hale suggested) depend on how the story is told, the facts remain that the equipment was supplied by another and the defect was latent. As Lord Neuberger somewhat resonantly pointed out: ‘I would be reluctant to invoke the fact that the council behaved responsibly in connection with the ramp as a reason for concluding that they were liable for an injury caused thereby.’

Outdoor funeral pyresDespite what many think, there’s never a dull moment in local government. This may well have occurred to Councillor Peter Arnold, leader of Newcastle City Council, when he received a letter from an orthodox Hindu with an ‘earnest request’ for land to be provided for an open air funeral pyre. Councillor Arnold, while indicating that the council had always been sensitive and proactive in providing bereavement services for all faiths and beliefs, nevertheless refused, contending that the law prohibited funeral pyres, and that therefore the council could not consider such a request until the law was changed. And, in a carefully considered 59-page judgment, Cranston J in the Administrative Court on 8 May 2009 agreed (see Ghai v Newcastle City Council [2009] EWHC 978).

In coming to this view, the court considered the statutory position (in particular the Cremation Act 1902 and the Cremation (England and Wales) Regulations 2008 (S.I. 2008 No. 2841) and articles 8, 19 and 14 of the European Convention on Human Rights.

As to the legislation, Cranston J considered that these measures put the matter beyond doubt – open air cremation is not permitted. Article 8 (right to respect for private and family life), does not protect things that an individual can only do by leaving private space and engaging in a public activity. Therefore, open air pyre cremation lies outside the private sphere of a person’s existence protected by this measure. But even if those rights had been infringed, the court considered that there would be justification (per article 8(2)).

Article 9 concerns freedom of religion and encompasses a ‘manifestation of belief’ which can be interfered with only if there is relevant justification. In summary, while Cranston J found that the claimant’s belief had the requisite degree of seriousness and importance, there was justification. He indicated that any interference must be necessary to meet a pressing social need and must also be proportionate to the legitimate aim pursued. He noted that what had become the major contention before the court – the likely public reaction – was difficult and delicate territory. Consequently: ‘it is precisely for that reason that those democratically elected, with the legitimacy which election confers, are better placed than a court to decide where the balance lies’. It was therefore within the remit of the secretary of state to conclude, as he has, that a significant number of people would find both the principle and the reality of cremation by means of open air pyres to be a matter of offence. And since this is a matter where opinions reasonably differ, the balance struck by elected representatives is entitled to be given special weight (see Hatton v UK [2003] 37 EHRR 28).

And while article 14 prohibits discrimination, Cranston J had no hesitation in concluding that there was objective and reasonable justification for any disproportionately prejudicial treatment.

The balancing of complex and sensitive considerations surrounding individual rights against those of the wider community is always a difficult task and different arbiters may well weigh the balances differently. In the end (and in the particular circumstances) Cranston J felt that those democratically elected were best placed to take such decisions and that the balance struck by government was therefore ‘entitled to respect’.

Nicholas Dobson is a practising solicitor specialising in local government