Tuesday, November 19, 2013

McCririck age discrimination case: analysis

Racing pundit John McCririck has lost his age discrimination case against Channel 4 and IMG Media Limited. McCririck, who had worked for ‘Channel 4 Racing’ since 1984, was dismissed in October. He was aged 72 at the time. The tribunal found that the dismissal was objectively justifiable in the circumstances, on grounds that Channel 4 wished to attract wider audiences. A copy of the judgment can be found here

Why was he dismissed – reality TV appearances, chauvinistic views or age?

The tribunal heard evidence that part of McCririck’s on camera style included sexist views and male chauvinism (referring to his co-presenter Tanya Stevenson on air as “Female”). In his own evidence, McCririck stated that his “pantomime villain sexist image had been deliberately cultivated and played up”. The tribunal viewed DVD extracts of racing broadcasts, as well as extracts from McCririck’s appearances in Celebrity Big brother and Celebrity Wife Swap. Although the evidence suggested that McCririck’s reality tv appearances may have contributed to a reduction in his hours in 2008 and 2010, the tribunal found that there was no evidence that Channel 4 told McCririck at any time that his mode of dress, outspoken views or use of tic-tac language should be moderated.

In September of this year, IMG, having won the bid to cover ‘crown jewel’ events in the racing calendar, had received ‘talent tracker data’ from a market research agency, which was gathered in a national online survey. The talent tracker confirmed that McCririck was well known (with 78% ‘awareness’), but found that 61% of those surveyed did not enjoy viewing McCririck. Overall, he scored badly. In deciding on a new panel of racing presenters, it was decided that MrCririck should not have a role.

However, McCririck forwarded evidence sufficient to support an inference of discrimination, including that Ms Stevenson (aged 42 at the time) was kept on whilst McCririck was dismissed, and that all of the other presenters who were dismissed when compiling the new look line up were also aged over 50. Reference was also made to documentation which indicated that IMG’s bid was predicated on the fact that it intended to use “younger presenters to attract younger audiences” (despite there being evidence before the Tribunal that younger presenters would not achieve this).

Having concluded that McCririck had put forward sufficient evidence of age discrimination, the burden of proof should have shifted to IMG/Channel 4 to establish either:

(i) that there had been no discrimination because the decision to dismiss was not age related; or

(ii) that, even if the decision was age related, dismissal was a proportionate means of achieving a legitimate aim.

Unfortunately, whether or not the tribunal actually made a finding as to the reason for dismissal is not clear from the written decision. Having established a shift in the burden of proof, there is a ‘fastforward’ to item (ii) above, consideration of objective justification. This suggests a finding that the reason for the dismissal was indeed age. However, there are also parts later in the decision in which the Tribunal refer to the dismissal being because of McCririck’s persona. 

What was Channel 4’s justification?

The aim of IMG and Channel 4 was to bring horse-racing to a wider audience. Channel 4 gave evidence that, for the future of the sport and programming, it was important that it “grow a wider audience whilst not losing focus on the core viewer”, and that its aim was to “strike a balance between much of what currently works whilst bringing a fresh feel to the experience that will attract a younger audience”.

Surprisingly, the tribunal was satisfied that the aim was sufficiently “of a public interest nature” to be legitimate (following the Supreme Court’s decision in Seldon v Clarkson Wright & Jakes, which confirms that the aim must have a public interest nature, and be consistent with the social policy aims of the state, namely ‘inter-generational fairness’ and ‘dignity’). It also found that the means of achieving the aim were proportionate.

Accordingly, it found that Channel 4 had not contravened the Equality Act 2010 (and that IMG could not have helped them to do so).

Will there be an appeal?

McCririck has confirmed his disappointment in the decision, but is also reported to have said it is unlikely that he will appeal the decision, which was published on 13 November 2013. 

Whilst the tribunal found that there was sufficient evidence for the burden to shift to Channel 4 / IMG, it has failed to make any clear finding as to whether or not the dismissal was because of age. The lack of structure and clarity in the written decision could give grounds for appeal. 

Interestingly, the judgment also contains a statement that the dismissal was “because of [McCririck’s] persona” (in Celebrity television shows and press articles), “together with his appearances 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”. 

Even if an appeal is brought and a re-hearing of the evidence takes place, there does seem to be evidence that the decision to dismiss was not in fact age-related and that it was McCririck’s “arrogant and confrontational” persona that played the biggest part in his departure. Therefore, any appeal may in any event lead to a dead end.

 

Katie Russell
Associate
Shepherd + Wedderburn
katie.russell@shepwedd.co.uk

 

This article originally appeared on the Shepherd + Wedderburn internet site on 14 November. To view the original, click here.


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