Horse racing pundit Mr John McCririck has this week lost his £3 million age discrimination claim against his former employer Channel 4 and sport TV production company IMG Media Ltd.
Mr McCririck, who is 73 years old and was one of several longstanding members of the Channel 4 horse racing presenting team was dropped in October 2012 after Channel 4 won the exclusive right to terrestrial coverage of horse racing last year. The new, noticeably younger team, now headed by Clare Baldwig, took over at the start of 2013.
Announcing that he had issued a claim for £3 million against his former employer in January 2013, Mr McCririck said he had been dismissed because he was “too old, without any consultation or cogent explanation”. Channel 4 and IMG vigorously defended the claim during the hearing earlier this year stating that the decision was made for legitimate and justified reasons.
The law protects workers of all ages against age discrimination. There is however a defence to both direct and indirect age discrimination. If the employer can show that the less favourable treatment is a proportionate means of achieving a legitimate aim it will not be unlawful.
This defence was successfully raised in this case and the Central London Employment Tribunal found against Mr McCririck. The tribunal’s judgment stated: “All the evidence is that Mr McCririck’s pantomime persona, as demonstrated on the celebrity television appearances, and his persona when appearing on Channel 4 Racing, together with his self-described bigoted and male chauvinist views were clearly unpalatable to a wider potential audience. The tribunal is satisfied that the respondent had the legitimate aim of attracting a wider audience to horseracing.”
However, employment law commentator Darren Newman has concluded that the reasoning used by the Tribunal may have been flawed, opening up the possiblity for Mr McCririck to appeal.
It may well be that the potential benefits to Mr McCririck of appealing are severely limited. In our view one of the most likely outcomes of a successful appeal would be to remit the decision back to the same tribunal (as pointed out by Laurie Anstiss). If that were the case, there would be a strong likelihood that the tribunal would reach the same conclusion on reasons which could be refined to take into account of any possible shortcomings identified in appeal. This would leave with Mr McCririck with the same outcome but a potentially greater legal bill.
But the matter flags one of the ways that social media has the potential to change the reality and perception of law. Until recently, tribunal judgments were mostly restricted only to the parties and their legal representatives. Although available, and public documents, the reality is that judgments were rarely if ever disseminated. The new practice of posting some tribunal judgments online, and advertising them via the @judiciaryUK twitter feed, means that some judgments are becoming more widely reviewed and assessed by experts and commentators in a way that was not really possible previously.
If this results in a wider understanding of the realities of employment law, the complexities of tribunal decisions, and a more informed debate, then so much the better. And no doubt the Employment Judges will welcome their new audiences and the constructive criticism that they bring.