The Employment Appeal Tribunal (EAT) has ruled that an age discrimination claim must be carefully scrutinised where there is only a marginal age difference between a claimant and their comparator. The high value case of Citibank N.A v Kirk has now been remitted back to the tribunal for reconsideration.
Mr Kirk was employed by Citibank as a managing director. In 2017, Citibank made the decision to streamline their existing management model and reduce the number of managing directors in their natural resources team from three to one. As a result, Mr Kirk, aged 55, was made redundant. During the process, Mr Kirk was told he was “old and set in his ways” and needed to adopt a more “agile” approach. Ms Olive, who was offered the remaining managing director role, was 51.
Mr Kirk bought claims of unfair dismissal, age discrimination and harassment. Ms Olive was his comparator for the purposes of his age discrimination claim.
Mr Kirk succeeded in his unfair dismissal claim and some of his age discrimination claims and was awarded nearly £2.7m in damages.
Citibank’s primary appeal point was that the tribunal had not correctly applied the relevant legal test when they considered whether Citibank had discriminated against Mr Kirk on the grounds of his age.
Citibank’s overwhelming witness evidence was that the decision makers for the purpose of the redundancy exercise did not perceive there to be a material difference in age between Mr Kirk and Ms Olive. In fact, both employees were perceived to be in the same age bracket. Citibank argued the tribunal had not considered the decision makers’ perceptions when reaching its judgment.
On consideration, the EAT concluded that the tribunal did not give due consideration to Citibank’s evidence that age was not the reason for the alleged discriminatory treatment. The EAT said the tribunal must give due consideration to the evidence given by each witness and consider whether their perception in the difference of age would make the discrimination less likely. As the tribunal did not consider the relevant decision makers’ perception in the first instance, the EAT concluded there had been an error of law.
In its judgment, the EAT made it clear that where there is a reason to believe a decision had been influenced by a difference in age, the fact such age difference is marginal would not be fatal to such claim. In these circumstances, the act in question should just be subject to further scrutiny.
This case has now been remitted back to the original tribunal for a rehearing.
This case serves as a useful reminder of the importance of not ruling out age as a risk factor when there is a small difference in age between comparators. Even where there is only a marginal difference in age, there is still a risk of an employee successfully claiming age discrimination.