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age discrimination employment law

McCririck age discrimination case fails

John_McCririck

On 13 November the Central London Employment Tribunal handed down its reserved decision in the case of McCririck v Channel 4 Television Corporation and IMG Media Limited. Given the celebrity status of the Claimant the case attracted a good deal of attention. IMG took over the contract to broadcast all terrestrial coverage of horse racing commencing 1 January 2013. In doing so it displaced the incumbent, Highflyer, for whom McCririck had worked since 1996 and previously with Channel 4 since 1984. As part of its pitch for the contract IMG said that they wanted to introduce a more analytical and journalistic approach to coverage. However IMG management, and former BBC employee Carl Hicks in particular, took the view that Mr McCririck did not fit the brief. Ultimately the Tribunal agreed and held in its judgment:

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…

All the evidence is that Mr McCririck’s pantomime persona, as demonstrated on the celebrity television appearances, and his persona when appearing on Channel 4 Racing, together with his self-described bigoted and male chauvinist views were clearly unpalatable to a wider potential audience. The tribunal is satisfied that the respondent had the legitimate aim of attracting a wider audience to horseracing.

However Mr McCririck claimed in evidence that, particularly in his appearances elsewhere, such as on Celebrity Big Brother, he was adopting a “pantomime persona” that was positively encouraged by Channel 4 executives so that, in effect, they could not have it both ways.

The judgment provides an extraordinary insight into the details of a tender for a significant television sports contract. Much of the narrative is of great interest to a racing fan such as me. From a legal perspective the detail is light on the application of the law to the facts. It is significant that, although barely noted in mainstream reporting, since all those whose contracts were not renewed were over 50, the onus shifted from Mr McCririck to Channel 4 and IMG. Instead of the claimant establishing that there was age discrimination, the respondents had to show that there was not. An unsatisfactory aspect of the decision is that there is no analysis of this aspect and it seems to be assumed that there was age discrimination. However, that discrimination was justified because the approach adopted was a proportionate means of achieving a legitimate aim, namely extending the appeal of horseracing to a wider audience.

Although there may well be decent grounds for an appeal, it seems that Mr McCririck has decided against this option:

This is an historic setback for all employees in their 30s to their 70s.

After such a landmark judicial verdict, my failed legal action ensures that anonymous suits and skirts, who control the media, numerous other businesses and the public sector, will now enjoy complete freedom to replace older employees whatever their unimpaired ability and merit.

I have let them all down along with my wife, The Booby, my legal team, friends, colleagues and countless members of the public who supported me throughout. My grateful thanks and apologies to every one of them.

Channel 4 provided a brief official response to the outcome:

We welcome the unanimous verdict of the tribunal that John McCririck’s claim fails and that Channel 4 did not discriminate on the basis of age.

We are grateful to John for his contribution towards Channel 4’s racing coverage over many years but disappointed that he decided to bring this claim.

Considering the criticisms of senior employees at Channel 4 and IMG it is reasonable to assume that they are also disappointed with the public airing of some pretty poor employment practices. The Tribunal noted that, had this been an unfair dismissal claim, there were some significant procedural failures which could have led to a decision in Mr McCririck’s favour. The Tribunal reserved its most strident criticism for Jay Hunt, Chief Creative Officer of Channel 4, and former Controller of BBC One who achieved some notoriety when Miriam O’Reilly was sacked from the BBC programme Countryfile, allegedly to make way for younger presenters. Ms Hunt gave evidence at the Tribunal at which Ms O’Reilly succeeded in her claims for age discrimination and victimisation.

In this case Ms Hunt said in evidence that she had “apologised personally” to Ms O’Reilly. Ms O’Reilly denied this. It turned out that the “apology” appeared in a newspaper article published some months later. The Tribunal left Ms Hunt in no doubt about what they thought of this:

the Tribunal finds it disingenuous of Ms Hunt to think that an expression of regret given in a newspaper article six monts after the decision amounts to an apology to Miriam O’Reilly. The fact that Ms Hunt told the Tribunal without qualification that she had apologised to Miriam O’Reilly goes to her credibility and is disingenuous in the extreme.

Martin Malone

By Martin Malone

I'm a solicitor and the chief operating officer at Canter Levin & Berg. I was formerly head of the employment department.
I maintain this website so if you have any suggestions, criticisms or recommendations please email me at martinmalone@canter-law.co.uk.
Outside work my interests include national hunt horse racing, France and French wine and current affairs. I also design and maintain websites.