The tabloid press view of John McCririck (JM) losing his age discrimination employment tribunal claim against Channel 4 Television and IMG Media may be summed up, inaccurately or otherwise, as “nothing to do with his age, everything to do with his personality”. Is this fair? Let’s look at the decision of the employment tribunal.
It seems to have been overlooked, amid all the frenzy, that (a) the tribunal did decide that the 72 year old JM suffered a detriment by not being permitted to work as a Channel 4 racing presenter, potentially tainted with unlawful discrimination by reference to his age, and (b) this served, pursuant to the principles in the well established Igen v Wong decision, to shift the burden of proof onto Channel 4 and IMG. In deciding this, the tribunal noted that fellow presenter Tanya Stevenson, aged 42, was kept on and that four other individuals dismissed at the same time were all over 50.
So how did Channel 4 satisfy the get-out provisions, namely that the treatment was a proportionate means of achieving a legitimate aim? Initially, by persuading the tribunal not to stick at a narrow definition of legitimate aim, namely inter-generational fairness or dignity. The goal of bringing horse racing to a wider audience was held to be legitimate in its own right, and JM’s dismissal was proportionate in that context. It would perhaps be unkind to reproduce further what the tribunal had to say, in turn, about JM’s individual characteristics in reaching that conclusion, even when it considered the difference between his pantomime persona on reality TV and his “gravitas” character when at work on the racecourse.
What conclusions do we draw? Employers may be relieved that this decision shows that even if they have slipped up – or find themselves unexpectedly caught out – in the face of the age discrimination card being played, they will not be on a hiding to nothing and will still have scope to face down the claim. It may still be cold comfort to those employers who will not have Channel 4’s bottomless pockets. But it is difficult not to feel a touch of sympathy for any employees faced effectively with the need to reapply for their own jobs in circumstances where the world has moved on and where their distinctive personal characteristics no longer fall on the right side of the divide. This, however, is a matter of politics rather than law.
