Mark Pentecost: Age-related case falls at final hurdle

John McCririck has been hitting the headlines.
John McCririck has been hitting the headlines.

There has been a lot of coverage in the national media about the eccentric racing pundit and TV presenter John McCririck taking Channel 4 to the Employment Tribunal over what he argued was age discrimination.

Unfortunately for the colourful Mr McCririck his claim was not successful but the Tribunal gave less than helpful reasons and I would expect that he may well appeal. What has surpised many employment lawyers is that McCririck’s claim failed when Miriam O’Reilly’s well publisised claim against the BBC following her being axed from Countryfile succeeded on what appeared to be very similar facts.

What’s it all about?

Direct age discrimination happens where someone treats another person less favourably than they would treat others because of the age of that person. This kind of discrimination is not quite as straightforward as other forms of discrimination such as race, disability, sex etc. because unlike the others, age discrimination can sometimes be justified.

Channel 4 justified dismissing McCririck by saying that his broadcasting style was not compatible with their aim to produce a high quality mainstream serious programmes that appeal to a wider audience.

No doubt that will cause a few raised eyebrows among anyone who’s watched C4 recently and McCririck responded by saying that C4 actually encouraged him to take part in such high-brow shows as “Celebrity Big Brother”, “Coach Trip” and “Celebrity Wife Swap”.

He said that the pantomime character that he played on these programmes was not that different to his racing presenter role and that he’d never been asked to “tone it down”. The Tribunal said that C4 had a legitimate aim in dismissing McCririck and the aim was proportionate. Both these requirements must be demonstrated for the justification to be valid.

However the Tribunal was less than helpful with it’s judgment. The Tribunal doesn’t appear to have dealt with the question of whether McCririck’s treatment was because of his age.

Also there didn’t seem to be any real consideration of a social policy element which should also be present. It is not enough to show a real business need. Is the broadcasting of horse racing a matter of public policy?

With the recent abolition of the default retirement age we may expect to see more cases like McCririck’s in the press. If you’re an employer who is worried that by treatment of an employee you may fall foul of age discrimination legislation, or an employee who thinks that they may have been discriminated against at work due to their age, you should seek expert legal advice.

In Other News

I spotted a seasonal query from a worried employer online this week: “Can we stop breastfeeding employees bringing their babies to the Christmas party?”

Naturally they are worried that they may be opening themselves up to a discrimination claim if they do.

The Festive season can be a nightmare before Christmas for employers and employees alike, especially where alcohol and social media collide - so have a happy holiday and be careful at those office parties!

- Mark Pentecost is a a trainee solicitor at Sanderson McCreath and Edney in Berwick.