Age discrimination is rarely overt and often unconscious, but Employment Tribunals (ETs) are adept at detecting it. In a recent case concerning a senior bank employee who was made redundant at the age of 55 following a meeting at which a colleague expressed the view that he was old and set in his ways (Kirk v Citibank N.A. and Others).
The man worked for the bank for 26 years before a reorganisation of responsibilities resulted in his dismissal. His internal appeal was subsequently dismissed and, after he launched ET proceedings, former colleagues greeted his age discrimination complaint with disbelief. The bank denied that his age had anything to do with his selection for redundancy.
In upholding his complaint, however, the ET found that the colleague's unguarded comment at the meeting was an act of age discrimination in itself. It was negative and age-specific and, whether or not its purpose was to humiliate and insult him, that was certainly its effect. Other statements made by colleagues were also capable of showing the possibly unconscious presence of age discrimination in the process leading up to his dismissal.
His complaints of age discrimination were treated less seriously than a complaint of sex or race discrimination would have been, and prior to the hearing of his appeal they were effectively ignored. Although his age was not the only factor in the decision to dismiss him, the rejection of his appeal was also tainted by possibly unconscious age discrimination.
The ET accepted that the reorganisation was genuine and that the reason for his dismissal was capable of being fair. The bank did not operate a provision, criterion or practice of dismissing employees because of long service and the man's dismissal was rather an opportunistic response to events.
However, he was given no warning of the proposed reorganisation before it was resolved upon and, if any attempts were made to find him an alternative position within the bank, they were inadequate. Neither the procedure followed nor the decision to dismiss fell within the band of reasonable responses a reasonable employer might have adopted.
The man's age discrimination and unfair dismissal claims were upheld, and the ET gave directions for a further hearing at which the amount of his compensation will be assessed.
Contact Emma-Louise Hewitt on 0808 166 8860 or email on e.hewitt@sydneymitchell.co.uk for individual advice on any discrimination issue.
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