international employment law firm alliance L&E Global
United Kingdom

UK: Age discrimination: Marginal age difference

Authors: Ruth Bonino, Corinna Harris and Sophie Jackson

Mr Kirk had the job title of EMEA Head of CB Energy, Managing Director at Citibank. At a meeting in 2017, he was told there would be a restructure and that Ms Olive, another managing director in his sector, would be appointed to the one remaining managing director role. During the meeting Mr Kirk’s line manager told him, “You are old and set in your ways”. At the time, he was 55 years old and Ms Olive was 51.

Mr Kirk was subsequently made redundant and brought claims for unfair dismissal, age discrimination and harassment. The employment tribunal concluded that he was dismissed because of age.

The EAT found that age discrimination can arise where there is only a small difference in age between the individuals involved. This is most likely to arise where an employer applies a “cut-off age” for a benefit. Where there isn’t a “cut-off age”, a small difference in age may mean it is less likely that the discriminatory treatment is because of age.

Key Action Points for Human Resources and In-house Counsel

In an age discrimination claim that does not rely on a “cut-off age”, if there is only a small difference between the age of the individuals involved, tribunals will be expected to scrutinise the claim to assess whether the treatment received by the claimant was because of age – even where, as in this case, there is overt evidence of blatantly discriminatory conduct.

The EAT noted that where there is a small difference between the age of the individuals concerned, their particular ages may be significant. So, the age difference might be more significant if the individuals are 18 and 20, than if there is the same age difference but they are aged over 40.

Citibank & Others v Niels Kirk