In Citibank NA v. Kirk (2022) the Employment Appeal Tribunal (EAT) ruled that where there is a marginal difference between the claimant and his or her comparator, careful consideration must be given when age discrimination is claimed. The case was referred to the Employment Tribunal for rehearing.
Mr. Kirk (K), aged 55 was the managing director, and in 2017, there was a restructure of the senior management team, leading to a reduction in the number of managing directors from three to one. As a result of this, K was made redundant. During the consultations, he was told he was "old and stuck in his ways" and needed to be "agile" in his approach. His female comparator was 51yrs old.
He claimed unfair dismissal, age discrimination, and harassment. He succeeded in his unfair dismissal claim and some of his age discrimination claims and was awarded nearly £2.7m in damages. Citibank appealed.
The appeal was primarily on the grounds that the ET had not applied the correct test to decide whether there was any discrimination on the basis of K’s age. Citibank argued that the decision makers did not perceive there to be a material difference in age between K and his comparator. In fact, both were perceived and treated as being in the same age bracket. They claimed that this feeling was not considered by the ET.
In its deliberations, the EAT concluded that the ET did not consider Citibank’s evidence that age was not the reason for the alleged discriminatory treatment. They should have considered their evidence and due regard to their perceptions about their respective ages. As the ET did not take into consideration the decision-maker's feelings, it was an error of law. The EAT went on to say that where there was reason to believe that age was an influencing factor, regard must be had to the age difference. The fact that such an age difference is marginal would not be fatal to such claims. It just needed further reconsideration. As a result, the case was remitted to the ET for re-examination.
Although this article is intended as a guide, the case proves that age should not be ruled out as a risk factor, and even where the age difference is nominal or marginal, it can still lead to an age discrimination claim.
The article is for informational and educational purposes only and should not be relied upon as legal advice.
Should you need any further assistance on the matter, please do not hesitate to call our advice-line team for free on 0116 274 9193.
