A diverse age range in the workforce can have many positive benefits for employers but it also creates potential age discrimination claims if an employee perceives they have received less favourable treatment than another employee(s) on account of their age. A particularly common scenario where this can arise is when an employee is dismissed (or their contract is not renewed) but a younger employee doing the same job is retained by the employer. It does not necessarily follow however, that the dismissed employee will succeed in a claim of age discrimination at an employment tribunal as the recent case of John McCririck v Channel 4 Television Corporation and another (November 2013) highlights.
The Law
Direct age discrimination occurs where an employer treats an employee less favourably than he/she would treat other employees because of their age.
An employer can defend a claim for age discrimination if they can demonstrate their less favourable treatment of the employee is because of a legitimate social policy objective, and that the treatment was proportionate in order to allow the employer to achieve that objective. Legitimate social policy objectives include:
- Inter-generational fairness. This can mean a variety of things, including facilitating access to employment by young people and succession planning.
- Dignity. This includes limiting the need to dismiss older workers on the ground of underperformance, thus preserving their dignity and avoiding humiliation and costly, divisive disputes.
Background
John McCririck is a well-known television presenter who covered horse-racing for over thirty years on both ITV and, latterly, for Channel 4. Mr McCririck also had high profile appearances on reality TV shows Celebrity Big Brother and Celebrity Wife Swap. Mr McCririck is known for his flamboyant dress sense and expressing his often controversial views.
At the start of 2012 Channel 4 won exclusive rights to broadcast horse-racing on terrestrial television in the UK. Channel 4 invited independent production companies to tender for the right to provide the racing coverage. The tender document stated that Channel 4’s key objective was to “grow new audiences while retaining the support of the core loyal racing loving viewer”. While the tender process was on-going, Channel 4 engaged a market research company to survey a sample of the public on their opinions on a number of television presenters. Mr McCririck scored badly in the survey; only white males over the age of 40 approved of him.
After the conclusion of the tender process, Channel 4 turned its attention to who it wanted to present the new racing show. Mr McCririck, who was 72 years old at the time, was informed by Channel 4 that they had decided not to retain his services. Mr McCririck’s co-presenter Tanya Stevenson, who was 42 at the time, was retained by Channel 4. In addition to this, a number of other presenters had their contracts terminated. Mr McCririck brought a claim for direct age discrimination against Channel 4.
Decision
The tribunal found two facts that gave rise to an inference of discrimination on the evidence provided by Mr McCririck:
- Mr McCririck’s contract was terminated, while Ms Stevenson was retained;
- All presenters whose contracts were terminated as part of the new line-up were over the age of 50.
The tribunal however found that Mr McCririck had not been discriminated against because of his age, the reason for his dismissal was because of his public persona and the arrogant, confrontational opinions he espoused.
Comment
“It is not surprising that the tribunal found Mr McCririck had not been discriminated against because of his age.
Channel 4’s defence was that Mr McCririck had been dismissed because they wanted to appeal to a wider audience, and Mr McCririck was a polarising figure who was unpopular with much of the public.
At the tribunal Channel 4 produced the results of the market research carried out on members of the public which confirmed their position. They also produced a large number of media articles featuring Mr McCririck in a negative light.
The outcome of the tribunal demonstrates that it will be easier for an employer to defend a claim of age discrimination if it can produce hard evidence supporting their position.”
