Following an employment tribunal's recent decision that John McCririck did not suffer age discrimination when he was replaced as a TV racing pundit, what steps can employers take to guard against similar claims?
John McCririck's age discrimination case against Channel 4 and IMG Media (the production company behind the Channel 4 racing programmes) has been well documented in the press. Many thought that he would succeed, particularly in light of Miriam O'Reilly's successful age discrimination claim in 2011 following her removal from Countryfile on BBC1, as the facts of this case seemed similar. However, on 13 November 2013 a Tribunal ruled that 72 year-old Mr McCririck's direct age discrimination claim failed.
This article looks at the reasons for the difference in the decisions and the steps employers can take to help protect themselves against similar claims.
The Equality Act 2010 makes direct age discrimination unlawful where, because of age, A treats B less favourably than A treats or would treat others.
Unlike other protected characteristics, direct age discrimination can be justified where A can show that its treatment of B is a proportionate means of achieving a legitimate aim. Following the case of Seldon, the legitimate aim also has to have a social policy aim.
It was the Respondents' case that McCririck's broadcasting style was seen as incompatible with the aim to produce a high quality, serious mainstream programme to appeal to a wider audience. This was backed-up with audience research carried out by IMG and the Tribunal accepted that McCririck's "self described bigoted and male chauvinist views were clearly unpalatable to a wide potential audience". Younger, female presenters such as McCririck's co-presenter Tanya Stevenson, were found to be more acceptable to the target audience.
Whilst McCririck argued that Channel 4 had encouraged him to participate in celebrity reality shows such as Celebrity Big Brother, Coach Trip and Celebrity Wife Swap, and that he played up to a pantomime character in these programmes, his style and tone on more serious programmes, such as racing programmes was not that different from his style and tone on celebrity shows. However, he had never been asked to change this or tone it down for racing.
The Tribunal's decision
Unhelpfully, the Tribunal's reasoning in McCririck is not as clear as it might have been and there are some obvious avenues for appeal. For example, the Tribunal identified the legitimate aim in the case as bringing horse racing to a wider audience. However, there is no discussion of how this aim has a social policy element. It also considered whether the treatment of McCririck was a proportionate means of achieving a legitimate aim without really dealing with the question of whether McCririck's treatment was because of his age.
Nevertheless, the Tribunal found that Mr McCririck's removal from Channel 4 racing was a proportionate means of achieving a legitimate aim. The existence of audience research seems to be the key difference between this case and the O'Reilly case, as there was no such audience research with negative views on Miriam O'Reilly and the BBC had seemingly reached their conclusion based on assumption in that case.
What are the learning points for employers following this claim?
Here are some practical tips for employers consider:
- Consider the legitimate aim the organisation is seeking to achieve. In the McCririck claim, the Tribunal accepted that Channel 4 was looking to appeal to a wider audience and that this did not translate to a "younger audience". Despite the McCririck decision, employers should also consider the social policy element of the aim.
- Is there a more proportionate way of achieving that aim than the action planned? In summary, this means thinking about whether the stated aim can be met in a way which has less of a detrimental impact on the individual.
- Obtain empirical evidence so that an employer can show that the decision was not based on an assumption or stereotype. Here, Channel 4 could demonstrate that they had commissioned "talent tracker" research in which McCririck scored very low on certain aspects of his persona and which caused Channel 4 concern in light of their aim to broaden the audience.
- The Respondents relied on one set of research regarding the wider public's perception of Mr McCririck and the Tribunal appeared to accept this uncritically. Arguably, an employer should try to corroborate any such data and gather as much empirical evidence as it reasonably can to back up its case and show why it was necessary for it to take the action it has.
- It is also worth remembering that McCririck's claim was for age discrimination only. If he had been an employee of Channel 4, it is highly likely that his dismissal would have been unfair.
- Keep notes of all conversations. The Tribunal were critical of the lack of notes taken of key meetings to discuss the decision to remove McCririck from Channel 4. However, the Tribunal found that this criticism did not demonstrate that Channel 4 acted on the grounds of McCririck's age.
- Consider introducing compulsory diversity training for all managers. The Tribunal were critical of Channel 4 for not making this training compulsory.
Given the costs involved we may not see an appeal in this case and it is frustrating that the Tribunal's reasons are not set out in its decision as clearly as they might have been to provide guidance for employers in similar situations in the future.
Although not binding on other employment tribunals, this case is a timely reminder that it is difficult to prove age discrimination; the mere fact that an older person is replaced by a younger person will not, by itself, be enough. Objective evidence will be key in order to demonstrate a legitimate case for dismissing an older worker and employers should always proceed with caution as every case is different.