Celebrity cases in the Employment Tribunals usually attract a lot of media attention. The latest involved John McCririck, the former presenter of Channel 4 Racing, who lost his claim for age discrimination following a decision by Channel 4 not to retain him as a television presenter (John McCririck v Channel 4 Television Corporation and another (2013)). The Employment Tribunal decided that the decision not to retain Mr McCririck was because of his image and presenting style; not because of his age.
Mr McCririck had worked as a television presenter covering horse racing since 1981. In October 2012, Channel 4 decided not to retain him as a presenter going forwards. This decision was taken following a survey of public opinion of a number of presenters, in which Mr McCririck had scored badly. Mr McCririck was 72 years of age at the time. He pursued a claim for direct age discrimination against Channel 4 and the production company (Highflyer Productions) which held the contract to provide horse-racing coverage to Channel 4 and engaged the services of Mr McCririck. He was not able to pursue a claim for unfair dismissal since he was not an employee of either Channel 4 or Highflyer Productions.
Direct age discrimination occurs where, because of age, A treats B less favourably than A treats or would treat others. However, unlike with the other protected characteristics in the Equality Act 2010 (e.g. gender, race, disability), there will be no direct age discrimination where A can show that its treatment of B is a “proportionate means of achieving a legitimate aim.” To establish this, a ‘legitimate aim’ must be a social policy objective and have a public interest element. This means it cannot be just something relevant to a private business, such as preserving profits. Guidance on what could constitute a legitimate aim was set out by the Supreme Court in the case of Seldon v Clarkson Wright and Jakes (A Partnership) (2012). Our articles on the Seldon case can be found here.
In this case, the Employment Tribunal held that Channel 4’s aim was to attract a wider audience to horse racing, and that this was a legitimate aim. It also held that Channel 4’s actions in not retaining Mr McCririck were a proportionate means of achieving this legitimate aim. The Employment Tribunal then concluded that the decision not to retain Mr McCririck was made for reasons other than age. The Employment Tribunal judgment said:
“Mr McCririck was dismissed because of his persona emanating from his appearances from celebrity television shows and the associated press articles resulting from them together with his appearances as a broadcaster on Channel 4 Racing where, as he accepted, his style of dress, attitudes, opinions and tic tac gestures were not in keeping with the new aims, and his opinions seen as arrogant and confrontational.”
Interestingly, the decision is contrary to a previous successful direct age discrimination claim brought by Miriam O’Reilly against the BBC (O’Reilly v British Broadcasting Corporation and another (2010)). This claim followed the removal of Ms O’Reilly as a presenter of Countryfile when she was 51 years of age. In this case, the Employment Tribunal held that the presenter’s age was a significant factor in the BBC’s decision and, although its wish to appeal to younger viewers was a legitimate aim, the removal of older presenters to pander to assumed prejudices of viewers was not a proportionate means of achieving that aim.
Given the above, Mr McCririck may decide to appeal to the Employment Appeal Tribunal although he has not said whether he will or not as yet.
The decision does show that it is possible to defend claims for direct age discrimination if it can be shown that age was not a significant factor in a decision to dismiss or terminate the services of an individual. However, matters such as these should be carefully handled and it usually best to seek advice. Another factor to consider is the possibility of a claim for indirect age discrimination. Indirect age discrimination is where a provision, criteria or practice puts (or would put) persons of a particular age or age group at a particular disadvantage when compared to other persons. An example of this can be found in the case of Homer v Chief Constable of West Yorkshire Police  . Our article on this case can be found here. Mr McCririck did not bring this type of claim so it was not a relevant factor to his case.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).