According to aggrieved former Channel 4 Racing pundit John McCririck, he is entitled to damages for age discrimination of £3m since he was not retained by new producers IMG Sports Media when they took over TV horse racing coverage from Highflyer Productions on 1 January 2013. He says he is being represented on a no win no fee basis by specialist employment and sports law solicitor Stephen Beverley of West End firm Cavendish Legal Group.
Following the BBC’s abandonment of racing coverage, including the Derby, Royal Ascot and the Grand National, the new Channel 4 contract brings with it exclusive terrestrial coverage of racing on the Channel. Perhaps not surprisingly the team selected is drawn from both the prior BBC and C4 racing teams and among those not selected (in addition to Mr McCririck) were C4’s Derek “Tommo” Thompson (62) and the BBC’s Willie Carson (70).
72 year old McCririck issued a statement on 9 January:
Channel 4 and production company IMG Sports Media were yesterday each served a letter before action for age discrimination. After 29 years with Channel 4 Racing, on a rolling annual contract, I have been sacked without any consultation or cogent explanation. I am 72.
For loss of future earnings, unfair career damaging (sic), public humiliation, stress and mental anguish, I will be seeking £500,000. Ageism is illegal. For tens of thousands of employees it has become the feared scourge of our society.
This litigation should prove to be a watershed. There’s no upper limit to the amount of damages employment tribunals can award under the Equality Act 2010. I am seeking a further exemplary, punitive £2.5m, part of which will be donated to charitable organisations helping to prevent negative prejudice in the workplace.
Channel 4 responded to the claim as might have been expected:
We are grateful to John McCririck for his contribution towards the success of Channel 4 Racing over many years.
However, we reject the suggestion that discrimination on the basis of age played any part in the decision not to renew his freelance contract and we will be vigorously defending this claim.
So can Mr McCririck really claim punitive damages at all, let alone for £2.5m?
Under UK law punitive damages, which are so popular in the United States, are recoverable only in very limited circumstances. As the name suggests, punitive damages are designed to punish the wrongdoer whereas the more common aggravated damages are intended to compensate the victim and to acknowledge aggravating features of the wrongdoing. As a coincidence there may also be an element of punishment of the wrongdoer but this is not the primary objective.
Opportunities to claim punitive damages arise only where permitted by statute or if the "categories test" is satisfied. This requires either the commission of a legal wrong in respect of which punitive damages were recoverable before 1964 – thereby excluding all discrimination claims including age discrimination, or if the conduct was an abuse of power by public servants or motivated by calculated profit seeking or affected a large number of people with similar claims. It can therefore safely be assumed that, contrary to his assertion, Mr McCririck will not be recovering punitive damages.
As for the merits of his claim generally, what might appear to be age discrimination can be justified if the employer can demonstrate objective justifications for its actions. In this case the merger of two existing workforces into one is a highly relevant consideration and other factors which might be taken into account could include business needs and efficiency, employment planning and even encouraging the recruitment and promotion of young people.
Of course there are those who might find it somewhat surprising that Mr McCririck is concerned to assert his protection from discrimination and, of course, those who will regard it as nothing more than self-publicity, for which he is renowned. It seems that TV presenter Philip Schofield is not afraid to pin his colours to the mast (via Twitter):
Dear John McCririck, maybe the reason you’re dropped by C4 isn’t cos you’re old, it’s cos you are a nasty, misogynistic dinosaur