Facts

Mr Kirk worked at Citibank from 2006 until he was dismissed in 2017. He was 55 when was dismissed.

From 2006 until 2013, he received a rating of 2 in his performance review. In 2014, this increased to a rating of 1 which was deemed “exceptional”.  For 2015 and 2016, the rating went down to a 3, meaning “consistently strong”.

After Mr Isaac and Mr Khullar were appointed as co-heads of Corporate Banking for EMEA, they decided to undergo a restructure in the business and reduce the number of managing directors from four to two.  Two redundancy consultation meetings took place with Mr Kirk, and he then received notification of his redundancy on the 20 November 2017. Mr Kirk appealed the decision on several grounds, and after an appeal in December the appeal was dismissed on 2 February 2018.

Mr Kirk made various complaints of age discrimination and harassment, including that he was passed over for the position of managing director due to his age.  He claimed that during the redundancy consultation meeting, Mr Falco (the manager of Mr Isaac and Mr Khuller) used the words “you’re old and set in your ways” when talking to Mr Kirk.  He also said that during redundancy consultation meetings Mr Isaac referred to the need for a more “agile” approach and for greater “agility”.

Decision

The Tribunal concluded that Mr Kirk had been discriminated against in a number of ways. 

There was sufficient evidence of possible age discrimination to shift the burden of proof to Citibank to show that his treatment was not on the grounds of age.  This included the comment made by Mr Falco, repeated use of the word “agile”, his sudden drop in performance rating, and the fact his complaints of age discrimination were treated less seriously that a complaint of race or sex discrimination.  The Tribunal also looked at statistics which showed that only one out of 48 managing directors in 2015 was 57 or older, and only two out of 51 in 2016.

The Tribunal found that Mr Falco’s remark “you’re old and set in your ways” was harassment related to age.

The Tribunal also found that Mr Kirk’s dismissal was direct age discrimination. Citibank had failed to show that this decision was in no sense whatsoever on grounds of age.  The Tribunal felt that it was affected by Mr Falco’s perception that Mr Kirk was old and set in his ways, and this perception was shared by Mr Isaac. 

The decision to uphold the dismissal on appeal was also tainted with age discrimination, because consciously or unconsciously the appeal manager agreed with, or at least wished to support, Mr Falco and Mr Isaac’s views of Mr Kirk and to close his mind as to the ground of appeal that he was being dismissed because of his age.  The Tribunal found that certain comments made to Mr Kirk during the appeal were age discrimination as well, including expressing “incredulity” that there could have been any age discrimination in the decision to dismiss him.

The Tribunal decided that other aspects of Mr Kirk’s treatment were not age discrimination, including his lower performance grades, refusal to allow him to bring someone from outside the business to the appeal meeting, and delay in dealing with a subject access request.

The judgment is available here.

Mr N Kirk v Citibank N.A. and others (England and Wales; Age Discrimination) [2020] UKET 3200291/2018, 2 January 2020