Mr N Kirk v Citibank N.A and 4 others — 2020

Mr N Kirk had worked for Citibank N.A. since 1 June 1991 and was 55 when he was dismissed on 20 November 2017, with termination effective on 27 November 2017. The tribunal applied the burden-of-proof approach in Igen v Wong and the unfair dismissal test in s.98(4) ERA 1996. It rejected the complaints about the 2015 and 2016 performance reviews, accepting the respondent's explanation that the ratings reflected the appraisal data, the weight given to partnership working and the calibration process. It also rejected the indirect age discrimination allegations based on long service, finding no practice or PCP of downgrading or dismissing employees because of service.

The tribunal upheld the complaint that Mr Falco told the claimant at the 25 September 2017 meeting that he was "old and set in his ways". It found that this was unwanted, age-specific conduct that had the effect of violating dignity and creating an adverse environment, so the harassment complaint succeeded against Citibank N.A. and Mr Falco. It also found that the later dismissal process was tainted by age discrimination, including the selection of Marie-Christine Olive for the new role and the way the appeal was handled. In that respect the tribunal treated the conduct of Mr Isaac, Mr Khullar, Mr Falco and Mr Bardrick as part of the discriminatory decision-making.

On the dismissal itself, the tribunal found that Citibank had shown a reorganisation of the Energy, Power and Metals and Mining franchise, so the reason for dismissal was some other substantial reason, namely reorganisation, rather than redundancy in the strict statutory sense. However, it held that the dismissal was unfair under s.98(4) ERA 1996 because the consultation was not genuine, the claimant was given no real advance warning that his role was at risk, little or no effort was made to seek suitable alternative employment, and the appeal process did not approach the discrimination complaints with an open mind.

The victimisation allegations failed. The refusal to allow an external companion at the appeal meeting was consistent with the respondent's policy, the proposed announcement about the claimant's departure was treated as an attempt to agree wording, and the delays in returning property and in responding to the subject access request were not found to be retaliatory. Remedy was not determined in this judgment; the tribunal left compensation to a later hearing.