CITIBANK N.A. & Ors v NIELS KIRK

The Employment Appeal Tribunal allowed the appeal in part, quashing parts of the Liability Judgment and remitting limited issues for reconsideration. The court held that the Tribunal had erred at stage two of the Igen v Wong burden of proof analysis by insufficiently engaging with the respondents' unchallenged evidence that the claimant and his comparator were perceived to be of the same age bracket; the Tribunal likewise failed properly to analyse comparator issues in relation to the appeal decision-maker. The EAT dismissed the appeals against the two Remedy Judgments: the tribunal's approach to reconstructing a fair selection pool was not perverse and the high threshold for upsetting its exercise of prediction was not met; and the tribunal was entitled to refuse to ascribe a value to the claimant's post‑termination shareholding where the respondent, who bore the evidential burden, failed to adduce cogent valuation evidence.

Background and parties: The claimant, Niels Kirk, employed by Citibank N.A. from 1991 until dismissal in November 2017 aged 55, brought claims of unfair dismissal, direct and indirect age discrimination and age‑related harassment. The Employment Tribunal (liability hearing concluded March/April 2019; liability judgment corrected 2 January 2020) found unfair dismissal and that age was an important factor in his dismissal; two remedy hearings followed producing awards and reductions determined under Polkey/Chagger principles and assessment of mitigation.

Procedural posture: The respondent appellants challenged the Liability Judgment and both Remedy Judgments. The EAT heard full argument and considered three grounds on liability and several grounds on remedy.

• Nature of the claims/relief sought: declaration and compensation for unfair dismissal and age discrimination (direct and related harassment), reductions under Polkey/Chagger and mitigation offsets.
• Issues before the EAT: (i) whether the Tribunal failed properly to consider respondents' non‑discriminatory explanations and unchallenged evidence (including perceived similarity of ages) at stage two of the Igen burden of proof test; (ii) whether the Tribunal erred on comparator issues in relation to the appeal decision‑maker; (iii) whether the First Remedy Tribunal’s reconstruction of a hypothetical fair selection pool was perverse (in particular inclusion of a subordinate in the pool); and (iv) whether the Second Remedy Tribunal erred in declining to ascribe a value to the claimant's post‑termination shareholding when assessing mitigation.
• Reasoning and outcome: The EAT reiterated the statutory framework (Equality Act s.5, s.13 and s.136 and the two‑stage approach under Igen v Wong) and held the Tribunal had shifted the burden appropriately but then failed adequately to evaluate respondents' affirmative evidence that they perceived the claimant and comparator to be of similar age; that omission was a material legal error and required remittal. The EAT also found the Tribunal had not carried out the required comparative analysis in respect of the appeal decision‑maker. By contrast, the First Remedy appeal failed because the Tribunal’s reconstruction of what a fair consultation might have produced (and the inclusion of the subordinate in the pool) was not perverse on the evidence; and the Second Remedy appeal failed because the respondents, who bore the evidential burden for valuation as an offset, produced inadequate valuation evidence and the Tribunal was entitled to conclude any valuation would be wild guesswork.

The EAT remitted the limited liability issues (grounds 2 and 3) to the Tribunal for reconsideration with guidance; the remedy judgments were left undisturbed.

Appeal allowed in part. The EAT allowed the liability appeal insofar as the Tribunal failed properly to consider the respondents’ evidence that the claimant and his comparator were perceived to be of the same age bracket and failed properly to apply the comparative analysis in respect of the appeal decision‑maker; those matters required remittal. The appeals against both Remedy Judgments were dismissed: the First Remedy Judgment’s reconstruction of a fair selection pool was not perverse; and the Second Remedy Judgment did not err in refusing to value the claimant’s shareholding because the respondents had not discharged the burden of proof on valuation.

Employment Tribunal (Liability Judgment promulgated 19 July 2019, corrected 2 January 2020) — Liability and two Remedy hearings; appeal to the Employment Appeal Tribunal resulting in [2022] EAT 103 (this judgment).