Bealzebub, thank you for posting the link to the Regulations. I think you should reread para 32 Exception for provision of certain benefits based on length of service, and in particular:
Where B's length of service exceeds 5 years, it must reasonably appear to A that the way in which he uses the criterion of length of service, in relation to the award in respect of which B is put at a disadvantage, fulfils a business need of his undertaking (for example, by encouraging the loyalty or motivation, or rewarding the experience, of some or all of his workers).
Any benefit which puts someone with more than five years service at an advantage to an equivalent member of staff with five years or less service must be justified. I believe this will be a legal can of worms which will only really become obvious towards the end of 2007 when we get the first cases decided in the higher courts.
Thanks I have reread section 32 which states in paragraphs 1,2 & 3 (the emphasis on certain words is my own):
" 32. —(1)
Subject to paragraph (2), nothing in Part 2 or 3 shall render it unlawful for a person ("A"), in relation to the award of any benefit by him, to put a worker ("B") at a disadvantage when compared with another worker ("C"), if and to the extent that the disadvantage suffered by B is because B's length of service is less than that of C.
(2) Where B's length of service exceeds 5 years,
it must reasonably appear to A that the way in which he uses the criterion of length of service, in relation to the award in respect of which B is put at a disadvantage, fulfils a business need of his undertaking (for example, by encouraging the loyalty or motivation, or rewarding the experience, of some or all of his workers).
(3) In calculating a worker's length of service for these purposes, A shall calculate—
(a) the length of time the worker has been working for him doing work which he reasonably considers to be at or above a particular level (assessed by reference to the demands made on the worker, for example, in terms of effort, skills and decision making); or
(b) the length of time the worker has been working for him in total;
and on each occasion on which he decides to use the criterion of length of service in relation to the award of a benefit to workers, it is for him to decide which of these definitions to use to calculate their lengths of service."
That seems quite clear. There is no use of the word "justified", the wording is, "it must
reasonably appear". An employer (A) may use seniority as the basis for promoting people providing they do not do discriminate on the basis of age alone. There will (of course) always be discrimination on the basis of ability. I can also not see anything within these regulations that prevents an employer from considering promotions on the basis of date of joining provided they do not use age alone as a discriminatory factor. In other words if a 30 year old is considered for promotion by virtue of the fact he has been employed by the company for 10 years whilst a 40 year old is not so considered because he has only been there for 9 years that is not unlawful. If the situation were reversed and the 40 year old were the longer serving employee then he to would be considered for the promotion ahead of the younger employee. He might of course be excluded on the grounds of perceived ability or suitability, but as long as it wasn't simply on the basis of his age (in this case ) or his race or religeon that would not be unlawful either.
As regards certain benefits based on length of service which is actually the subject that this section relates to, then ;
If an employee is placed at a disadvantage with regard to (lets say staff travel concessions) benefits, when compared with a longer serving employee , because of the length of service. paragraph 1 makes it quite clear that
Nothing in part 2 or 3 of this section makes this unlawful.
In the case of the junior employee with regard to time served, where he has over 5 years service then it must
reasonably appear to the employer that this employee is not placed at a disadvantage
except that he can do so to reward the longer serving employees experience, loyalty or motivation, and in so doing it fulfills a business need of the employers undertaking.
In reality this is little different from what already happens in most companies and does
not negate the use of a seniority system for such purposes provided that any discrimination is not based (in this case) purely on the age of the employee.