In Citibank NA and others v Kirk, the Employment Appeal Tribunal ruled that an age discrimination claim must be carefully scrutinised where there is only a marginal age difference between a claimant and their comparator. While a marginal age difference may render it less likely that the discriminatory treatment is due to age, the EAT nevertheless held that there is nothing in law which states that a small age difference between the claimant and their comparator is fatal to the claim.
The Age Discrimination Claim
Mr Kirk was made redundant following a department reshuffle in which three managerial positions were merged into one. He was 55 when he was made redundant and the manager who retained the position, Ms Olive, was 51. During the redundancy process, Mr Kirk was told that he was ‘old and set in his ways’ and needed to adopt a more ‘agile’ approach. He brought claims of unfair dismissal, age discrimination and harassment. For the age discrimination claim, Ms Olive was the comparator. He succeeded in his unfair dismissal claim and some of his age discrimination claims and was awarded nearly £2.7 million in damages.
Citi appealed, arguing that Ms Olive and other members of their team thought of themselves as ‘roughly the same age or in the same age bracket’ as Mr Kirk, which made the age discrimination ‘implausible’.
The EAT noted that the fact that the difference in age between Mr Kirk and the comparator is marginal or relatively small would not, in itself, be fatal to the claim. However, on the facts of this case, the EAT agreed that the tribunal had not given due consideration to Citi’s explanations for the treatment of Mr Kirk in light of the marginal difference in age between Mr Kirk and Ms Olive. It, therefore, ordered that the case be remitted to the same tribunal.
Learning From This Case
The practical message from this case is the importance of not ruling out age as a risk factor when there is a marginal difference in age between comparators. While Citi succeeded in getting this case sent back to the tribunal for a rehearing, the EAT made it clear this case was decided on its facts and that there is still a risk of an employee successfully claiming age discrimination even where there is a small age difference.
If you think you have been unfairly dismissed and a victim of age discrimination, contact our Employment Law specialists to make your case. Drop us an email at info@witansolicitors.co.uk.
