Tips for winning an age discrimination case

21 November 2013

John McCririck’s failed age discrimination case against Channel 4 and programme makers IMG has been widely reported, but press coverage has largely ignored the important lessons it contains for employers.

Facts

After a TV career spanning nearly 30 years, John McCririck, 73, was dropped from Channel 4 Racing in 2012 when a new team lead by Claire Balding, 42, took over. He claimed the decision was due to his age.

Direct age discrimination occurs when an employer treats an employee less favourably because of age than it treats, or would treat, another person in the same or similar circumstances. Indirect age discrimination happens when an employer applies an apparently neutral provision, criterion or practice that puts those of a certain age group at a particular disadvantage compared to other age groups. For a claim to succeed, the employee must suffer a disadvantage as a member of that group. In any direct or indirect discrimination claim on the grounds of age the employer has a defence if the treatment is objectively justified.

Tribunal

When the case was heard by an employment tribunal Channel 4 argued that, having secured broadcasting rights to new events, it wanted its racing coverage to appeal to a wider audience. It said that many people were repelled by McCririck's persona which had become well known as a result of his appearances on reality TV shows such as Celebrity Big Brother and Celebrity Wife Swap.

Channel 4 was able to demonstrate that its decision was made for good commercial reasons that were unconnected to age, so there was no less favourable treatment because of age. The tribunal accepted Channel 4’s argument that the presenter’s “pantomime persona” was unpalatable to a wider audience. McCririck’s own commendably honest evidence probably greatly assisted the tribunal here. For example, he is reported to have said, “I am an unpleasant person. I have never tried to hide it,” and to have accepted as accurate descriptions including “nasty”, “boorish” and “obnoxious and sexist”. This meant that the question whether the treatment was justified did not arise.

Comparison

It is perhaps instructive to compare this case with Miriam O'Reilly’s successful claim for age discrimination against the BBC a couple of years ago. She brought claims for age and sex discrimination when she was dropped from the Countryfile programme. Her sex discrimination claim failed on the basis that, as the programme makers wished to have a younger presenting team, a man of her age would also have been dropped from the show. However, she succeeded in establishing that her age was a significant factor in the BBC’s decision to replace her and, therefore, direct age discrimination, unless it was justified.

The tribunal accepted that the BBC’s desire to appeal to younger viewers was a legitimate aim, but not that the removal of older presenters was a proportionate means of achieving that aim. A big factor here was that the BBC just assumed without any evidence that a younger audience would prefer younger presenters. Channel 4, by contrast, had a survey which suggested that McCririck was highly unpopular with viewers (although as it turned out the organisation did not need it because it did not have to justify its decision as it was shown to be not age-related).

Comment

Following the tribunal’s decision, McCririck commented that this was an “historic setback for all employees in their 30s to their 70s.” It is not. Employers do not have a licence to replace older employees with younger, sleeker models.

What it does show is that when making a decision to remove someone, employers must be clear about the reasons and, ideally, to have documented this. Did the organisation make the decision because of age or something else? If it was because of age, or if age is a significant factor, can the decision be justified? This means identifying the legitimate aim being pursued in taking the decision and being able to demonstrate that this is a proportionate means of achieving it. It is likely to be proportionate if there is no less discriminatory way of achieving it.

The final lesson is that behaviour which makes an impression on celebrity TV can also make exactly the wrong impression in an employment tribunal.

This article first appeared on the CIPD’s publication PM Daily on 19 November 2013.

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