Screen Shot 2013-11-18 at 15.30.31

Racing pundit John McCririck backed a loser when he took on the broadcaster Channel 4 which unceremoniously axed him from its horseracing coverage. Known for his eccentric clothing and boisterous antics on and off the screen, 72 year old McCririck claimed that the broadcaster’s decision amounted to age discrimination. Whilst it found that he had been a victim of poor treatment, the central London employment tribunal failed to uphold his claim.

“It is quite true that McCririck was not warned about his style” the Judgment reads and that he was not “treated with courtesy and respect.” Notably it found that “his complaints of unfairness have some merit but this is not an unfair dismissal complaint. The tribunal cannot draw an inference of discrimination from the mere fact” of unfair or unreasonable treatment.

McCririck refused to believe that his brash persona was a problem. He said the broadcaster had encouraged him to appear on reality TV shows including Big Brother and Wife Swap in which his chauvinistic attitude was laid bare. The tribunal was sympathetic to his argument that no TV executive ever asked him to moderate his behaviour. His views found favour with former Labour home secretary David Blunkett MP who said, “The way TV executives worship the cult of youth seems to be an unstoppable fetish.”

This is not the first time that an older TV personality has fallen victim to TV commissioners wishing to change a channel’s viewing profile.  In the case of O’Reilly v BBC, the Countryfile presenter was found to have suffered age discrimination for similar reasons when she was dropped from the show in 2009, but she did not share McCririck’s characteristics.

Direct Age Discrimination occurs when A treats B less favourably than A treats or would treat others. Unlike other strands of discrimination, there will be no direct age discrimination where A can show that its treatment is a proportionate means of achieving a legitimate aim. That aim must have a ‘social policy’ aspect and not just correspond to some business need. In the O’Reilly case, whilst it was a legitimate aim of the BBC to appeal to a primetime audience and its younger viewers, it was not proportionate to remove an older presenter on the basis of the assumed prejudice of those viewers.

McCririck was able to establish a prima facie case of discrimination since all of those presenters whose contracts were terminated were over the age of 50. The burden then shifted to Channel 4 to demonstrate that its decision to terminate McCririck’s was not on the grounds of his age.

In opposition to the O’Reilly case, the employment tribunal found the aim of bringing a wider audience to horseracing to be legitimate. The tribunal then went on to decide whether the aim was proportionate but did not consider the question in particular detail.

The employment tribunal concluded by stating: “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.”

There are particular problems with the Judgment of the employment tribunal in the McCririck case. The aim of appealing to a wider audience does not necessarily square with the social policy criterion and there is a real paucity of reasoning to support its findings on proportionality.

McCririck only brought an age discrimination claim. It is surprising that he did not run a two horse race and pursue a claim of unfair dismissal as well as one of age discrimination. The idea of so-called ‘personality dismissals’ is not new and arguably McCririck’s personal characteristics other than age may have been a basis upon which Channel 4 could have defended a complaint of unfair dismissal. Having said that, Channel 4 had never brought him to book about his flamboyant and (some might say) offensive attributes and so a claim of unfair dismissal could well have succeeded. We will never know.

For the time being, we shall have to see if McCririck appeals. This case may just run and run…

By Meredith Hurst – Partner at Thomas Mansfield Solicitors Limited