Get in touch 0117 325 0526
Get in touch 0117 325 0526
Tags: age discrimination, Citibank NA & Others v Kirk
Categories: Employment Law
Background to the case:
Under the Equality Act 2010 (EA), direct age discrimination occurs when one person (A) treats another (B) less favourably because of (B)’s age. To succeed in a direct age discrimination claim, (B) needs to show they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to theirs. The comparator must be from another ‘age group’, defined as a group of persons who are all of a particular age or who all fall within a particular range of ages.
If (B) can prove facts which show they have been less favourably treated than their comparator, the ‘burden of proof’ shifts to (A) and/or their employer to provide a (non-discriminatory) explanation for such treatment.
The facts:
Mr Kirk (age 55) was employed as the Head of Energy in a franchise of Citibank. The other heads were Ms Olive (age 51) and Mr Hanen. When Mr Hanen moved to another internal position, the franchise was streamlined into a consolidated natural resources team to be led by a (single) managing director.
Mr Kirk was informed of these changes during a meeting with his line manager, Mr Isaac, and a more senior manager, Mr Falco. A redundancy consultation process took place during which the managers told Mr Kirk that he was ‘old and set in his ways’ and that there was a need for more ‘agility’ within the department. Following the consultation, Mr Kirk was dismissed by reason of redundancy and Ms Olive was appointed as the new managing director.
Mr Kirk brought a number of employment tribunal (Tribunal) claims against Citibank and his managers including unfair dismissal and direct age discrimination. Ms Olive was his chosen comparator.
Original Tribunal decision
The Tribunal found that Mr Kirk’s dismissal had been on the basis of age and that he had been subject to an ageist remark. It awarded Mr Kirk nearly £2.7 million in compensation, including for financial loss.
Citibank appealed to the EAT and said that the Tribunal had failed to properly consider the managers’ (non-discriminatory) explanations for the difference in treatment between Mr Kirk and Ms Olive.
EAT decision
The EAT agreed with Citibank and upheld its appeal. The fact that Mr Kirk’s managers had made remarks about his age did not absolve the Tribunal from considering Citibank’s explanation for his dismissal. It was Citibank’s evidence that the managers believed Mr Kirk and Ms Olive to be in the same age bracket. The Tribunal did not properly consider this and the EAT remitted the case back to it to do so.
In the absence of a cut-off age (e.g. limiting benefits to those over a particular age) a marginal age gap between a claimant and their comparator will reduce the likelihood that less favourable treatment is because of age. Therefore, in these circumstances the Tribunal should take particular care to scrutinise the facts and evidence.
That said, a relatively small age gap will not be fatal to an age discrimination claim. Age may still be the reason for less favourable treatment.
Implications:
If there is only a marginal age gap between a claimant and their comparator, in the absence of a cut-off age a Tribunal should take particular care to scrutinise the facts and evidence on the (hopefully) non-discriminatory reasons for any less favourable treatment.
That said, this decision highlights the importance of never (or very rarely) ruling out the risk of age discrimination. Even a minimal age gap between an employee and their potential comparator(s) will not be fatal to a claim.
The good news is that if you do face a claim when (as in this case) a manager makes an ageist remark, it does not lead to certain loss at Tribunal.
5.0/5