When discussing the risk of age discrimination with clients, a common response is “they are roughly the same age so I don’t have any concerns”. Whilst such an approach was always risky, the recent employment tribunal case of Citibank NA v Kirk is a reminder that even a minimal difference in age could be deemed to be age discrimination.
When considering an age discrimination claim, a tribunal will look at whether a claimant has been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to theirs. In particular, with direct age discrimination claims, the comparison must be with someone of a different age group.
Previous cases have shown that a claim where the age gap was 9 months was deemed to be “prima facie implausible to the point of absurdity”. Whilst on the face of it, this would seem to show that such a small age gap is not enough to satisfy the “different age group” test, this case was decided on its particular facts and was not, in reality, a blanket decision to be relied on where there is a minimal difference in age.
In the recent case of Citibank NA v Kirk, Mr Kirk had worked for Citibank NA for 26 years before an internal restructure saw him shortlisted for redundancy. Mr Kirk, 54 years old at the time, was placed in a redundancy pool with a colleague Ms Olive, 51 with the highest scoring individual to be appointed to a new director role. During the redundancy process comments were made to Mr Kirk that he was “old and set in his ways” along with various other comments about “agility”. Ms Olive was eventually given the role and Mr Kirk was made redundant.
Mr Kirk brought claims for unfair dismissal and age discrimination against Citibank and also the individuals involved in the decision making process to make him redundant. Mr Kirk was successful in the initial employment tribunal claim and awarded a sum of £2.7m. Unsurprisingly the Respondents appealed the judgment to the employment appeal tribunal (EAT).
Amongst the points of the Respondent’s appeal was that the tribunal had failed to consider the explanations for the treatment of Mr Kirk. This was of particular importance given the marginal difference in age between Mr Kirk and Ms Olive. The Respondents maintained the position that both individuals were in the same age bracket and that this went unchallenged in the employment tribunal.
The Respondents were successful in getting the case remitted to an employment tribunal to reconsider the age discrimination point (mainly owing to a poor process followed by the tribunal during the original hearing). However, the EAT did make clear that there is nothing in law which states that where there is a marginal age difference between a claimant and a comparator, that the claim cannot succeed. A tribunal would, however, need to carefully scrutinise any such claim against the facts and evidence before them.
Whilst the claim is still to be re-listed in the employment tribunal, it is clear that a marginal age difference is not automatically fatal to the claim. The tribunal will reconsider all of the Respondents’ evidence in relation to the age discrimination claims and apply particular scrutiny to the evidence of all parties.
For the Respondents, what appeared at the outset to be a straight forward defence to an age discrimination claim has turned into an expensive tribunal defence with a potential £2.6m liability. We await the employment tribunal judgment with interest and will update readers on the outcome once known.
What should you be doing now?
Employers should always be considerate of discrimination laws when making decisions to dismiss, whether that is via a redundancy pool or otherwise.
When considering potential age discrimination issues, employers should avoid, where possible, any reliance on the “roughly the same age” argument when considering the risk of a dismissal. Whilst ultimately such a defence may be successful depending on the circumstances, avoiding a lengthy, expensive legal dispute utilising such a defence should always be a preference.
These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.
