This case was an EAT appeal from the Employment Tribunal.

Facts

Mr Kirk was an employee of Citibank NA from 1991 to 2017 and was aged 55 when he was dismissed. He argued that his dismissal was unfair and discriminatory on the grounds of age as he was selected for redundancy when one of his peers, Ms Olive, who was aged 51 at the time, was appointed to a new role.

Mr Kirk complained that he was not considered for the managing director position because of his age. He said that during a redundancy consultation meeting he had been told that “you’re old and set in your ways”.  Another manager referred to the need for a more “agile” approach and for greater “agility” during the redundancy consultation meetings.

Mr Kirk succeeded in some of his age discrimination claims at the Employment Tribunal (ET).  The ET found that the remark “you’re old and set in your ways” was harassment related to age.  The ET also found that Mr Kirk’s dismissal was direct age discrimination as it was affected about perceptions related to his age, and the decision to uphold the dismissal on appeal was also tainted with age discrimination.  Citibank appealed this decision.

Decision

The Employment Appeal Tribunal (EAT) decided that the ET had not properly considered Citibank’s explanation for Mr Kirk’s treatment.  This was in light of the marginal age difference between Mr Kirk and Ms Olive, and the unchallenged evidence that Citibank’s witnesses regarded them as being in the same age bracket.  The ET had not explained why this evidence did not show there was no age discrimination.

The EAT also found that the ET had not used an appropriate comparator when it looked at whether Mr Kirk’s treatment during the appeal was age discrimination.  They failed to compare his treatment to what would have happened to a hypothetical younger comparator.

The case was remitted back to the ET to reconsider the reasons given by Citibank for Mr Kirk’s treatment.

The judgment is available here.  

Citibank N.A and Others v Niels Kirk [2022] EAT 103, 12 July 2022