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Racing pundit and Celebrity Big Brother contestant John McCririck, who is 73, is currently bringing an age discrimination claim against Channel 4 and production company IMG.  McCririck is claiming £3 million in compensation.  This article looks at the facts in the case and the issues the Employment Tribunal will consider when deciding if a claimant has been subjected to age discrimination.

Age discrimination case: the facts

In October 2012, Channel 4 decided to part company with McCririck in January 2013, when production of their racing coverage moved from Highflyer Productions to IMG.  McCririck, who worked as a racing pundit on Channel 4 since 1984, is arguing that he lost his job due to age discrimination as the broadcaster wanted a younger presenting team.

Equality Act 2010 and age discrimination law

The Equality Act 2010 makes it unlawful for an employer to discriminate against an employee because of their age by treating them less favourably than they do treat or would treat others. The Equality Act also affords protection to ‘contract workers’, which would generally include agency staff and those working for a contractor to a ‘principal’ employer. Unlike other characteristics protected under the Equality Act – such as sex and disability – age discrimination is permitted where an employer can show it is objectively justified. The employer must show that its action is a proportionate means of achieving a legitimate aim.

The justification defence

In theory, Channel 4 and IMG might have sought to objectively justify any age discrimination on the basis that they were objectively pursuing the legitimate aim of reaching out to or appealing to a younger audience.

This question was considered by an Employment Tribunal in 2011 in the claim brought by former Countryfile presenter Miriam O’Reilly against the BBC and the publishers of Countryfile Magazine. O’Reilly was dropped from Countryfile and replaced by a younger presenter; she argued that this was age discrimination.

The BBC argued that the new presenting team had been selected because they had a “substantial network profile that might attract [a] primetime audience.” The Employment Tribunal did not accept this, stating that “we consider a significant factor in their choice was their comparative youth, and in the decision not to consider the claimant, her age.”

But the BBC would have still been allowed to make their decision on the basis of age if it had been able to demonstrate its actions were a proportionate method of achieving a legitimate aim.  However, while the Employment Tribunal agreed it could be a legitimate aim, it did not find that removing an older presenter and replacing them with a younger one was a proportionate means of achieving that aim.

It therefore seems unlikely that Channel 4 and IMG would be able to defend McCririck’s claim on the basis that it was justified in removing him in order to bring in younger presenters.

Progress of John McCririck’s case

In June this year, McCririck’s claim underwent a prehearing review during which Channel 4 unsuccessfully tried to argue that he was self-employed and therefore not protected under the Equality Act.  Employment Judge Snelson pointed out that “he was known as a Channel 4 face,” and that “Channel 4 promoted him as part of the Channel 4 team.”

Protected characteristics

Channel 4 also argued that age had nothing to do with the decision not to renew McCririck’s contract.  Channel 4 says that their decision arose from concerns about McCririck’s exaggerated style and alleged ability to cause offence. Channel 4 suggested that McCririck’s style may turn away the wider audience that they wish to attract to their racing coverage.  At first glance, that suggestion appears similar to the BBC’s argument in Miriam O’Reilly’s case.  However, the key difference here would appear to be that the aspects of McCririck’s presenting style that might turn off prospective Channel 4 viewers do not arise from a protected characteristic (i.e. his age) but rather from his inimitable presenting style.

McCririck has not shied away from the publicity that the case has brought him. After the preliminary hearing he stated: “We have won a significant opening skirmish against the anonymous suits and skirts at Channel 4, who sit in judgment on people’s careers. My legal team will now confront them at a full tribunal.”

For their part, the “anonymous suits and skirts” at Channel 4 continue to deny that age was a factor in their decision. A spokesperson for the channel said: “We reject the suggestion that discrimination on the basis of age played any part in the decision not to include John McCririck in the Channel 4 Racing team from 2013 and we will continue to vigorously defend this claim.”

The case will now proceed to an Employment Tribunal hearing scheduled to begin at the end of September 2013, where the evidence will be considered in full.  It will be interesting to see if Channel 4’s explanation of the reasons to let McCririck go is accepted, not least because the exaggerated style they argue was the reason for his dismissal is one of the factors that made him such a memorable pundit in the first instance.

Points to note for employers dismissing an employee

The case serves as a salient reminder to employers of the risks involved in dismissing employees who apparently have a protected characteristic in the minority in the workplace.  Employers would be well advised to keep a record of all meetings and to have a clear understanding of the reasons a particular decision has been taken in order to stand the best chance of defending any claims brought.

To discuss any of the issues raised in this article or if you would like to speak to one of Lyons Davidson’s employment lawyers about discrimination in the workplace, please contact us on 0117 904 6000.