Citibank & Ors v Kirk [2022] EAT 103

Appeal against a finding of unfair dismissal and age discrimination, and against two remedy judgments. Two of the three grounds in the liability appeal were allowed; the remedy appeals were dismissed.

The Claimant succeeded in his claims of unfair dismissal and age discrimination (in part) following his dismissal from the Respondent at the age of 55. He was awarded just under £2.7m in compensation. The Respondent appealed both the liability and remedies judgments. The principal challenge to the Liability Judgment was that the ET erred in not properly considering the Respondents’ explanation for the treatment of the Claimant in light of the marginal age difference between the Claimant and the comparator (who was aged 51), and the unchallenged evidence that all of the individual Respondents regarded the Claimant and the comparator as being in the same age bracket. The appeal against the First Remedy Judgment was primarily a perversity challenge based on the ET’s approach to the selection pool that would have been adopted had the Respondents followed a fair and non-discriminatory process. The appeal against the Second Remedy Judgment challenged the ET’s failure to take account of the value of the Claimant’s shareholding in a company established by way of mitigating his loss.

The EAT allowed two grounds, including the main ground, of appeal in the Liability Judgment but dismissed the third. The ET appeared not to have given due consideration to the Respondents' evidence in regard to the Claimant and the comparator being in the same age bracket, and their explanation that age could not be reason for the alleged discriminatory treatment. The EAT dismissed the remedy appeals.

Published: 20/07/2022 10:03

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