Banker told he was ‘old and set in his ways’ wins unfair dismissal claim

Tribunal finds complaints of age discrimination were ‘treated less seriously’ than complaints of sex or race discrimination would have been

A senior banker who was made redundant from his role at Citibank after 26 years at the company was unfairly dismissed and discriminated against on the grounds of age, an employment tribunal (ET) has ruled.

The East London ET ruled that Citibank had treated Mr Niels Kirk in a discriminatory way due to his age when it made him redundant from his role as chairman and managing director of the bank’s energy and natural resources division for Europe Middle East and Africa. He was 55 years old at the time.

Kirk claimed the company’s culture was one in which corporate and investment bankers such as himself were expected to “make way and move on” as they reached their mid- to late-50s so younger senior managers could step up. He said he had been told by a senior manager he was “old and set in his ways”.

However, claims of indirect age discrimination in relation to Kirk’s performance review grades falling were dismissed, as were other claims of age discrimination and victimisation.

Kirk worked at Citibank from 1991 until he was made redundant in November 2017.

Earlier in 2017, proposals were tabled by Kirk’s senior managers to restructure his team so that it was led by a single senior managing director. Both Kirk and another managing director were considered for this role. At the time Kirk was aged 55, while the other manager was 51.

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Following the decision to restructure, in a meeting on 25 September, Kirk was informed he was at risk of redundancy. Kirk told the tribunal he was given no forewarning as to the content of the meeting, and argued the decision to appoint his younger colleague to the role had already been made.

Kirk also claimed that in the meeting he was told by a senior manager: “You’re old and set in your ways.” The manager in question denied having made the comment, but the tribunal found Kirk’s evidence more convincing.

Following this meeting, Kirk emailed his managers arguing against making him redundant, and said that passing him over for the remaining managing director role would have nothing to do with skills or experience, “but rather my age”. 

A consultation on the restructure was opened in October 2017, and Kirk was dismissed by a letter dated 20 November 2017. He appealed, but this was dismissed in a letter dated 2 February 2018.

The ET upheld Kirk’s claims of age discrimination and found he had been unfairly dismissed, noting there was “no dispute that the claimant received detrimental treatment.” 

It found the younger candidate was chosen for the role before the job description had been drawn up, and the decision had already been made to make Kirk redundant before they held the meeting with him on 25 September and before the consultation opened in October.

The tribunal noted after the redundancy was decided that “managers were not interested in retaining [Kirk] within the organisation by engaging with him as to the possibility of finding him suitable alternative employment” and that Kirk’s responses to the consultation “were not addressed in an open-minded way”. 

The ruling also said the statements made by senior managers, including the remark about Kirk being set in his ways, “could show, possibly unconsciously, the presence of age discrimination”, and that Kirk’s compliants of age discrimination were treated “less seriously than a complaint of sex or race discrimination would have been treated”.

Commenting on the case, Angela Brumpton, partner at Gunnercooke, said that it seemed Citibank genuinely believed Kirk had performance issues. But she added this case represented “a good illustration of how not to manage someone in that scenario.”

“Do not assume someone is incapable of change or of addressing problems, simply because of their age,” she advised, adding that it was unwise to reference the need for ‘new, young talent’ or to equate older age with lack of enthusiasm or being set in one’s ways. 

“If you haven’t properly managed and recorded performance issues in the workplace, you may be unable to justify the selection of one candidate over another, which leaves you vulnerable to allegations of discrimination,” she said.

A spokesperson for Citibank said: “Citi denies that Mr Kirk’s redundancy was in any way related to his age. While the tribunal did not uphold all of Mr Kirk’s case, we are disappointed with its decision regarding his termination, particularly given the small age gap between Mr Kirk and the employee who was ultimately appointed to the role.”

Kirk has not responded to a request for comment. 

A settlement has not been agreed, and Citibank is appealing the judgment.