In John McCririck v Channel 4 Television Corporation and another, the Employment Tribunal recently considered whether 72 year old horse racing pundit John McCririck had suffered direct discrimination on the ground of age. 

Mr McCririck was a regular television presenter for Channel 4 and had been covering horse racing on television since 1981. He became best known for his unique style of dress and manner of presentation, including his outspoken views. In 2008, Mr McCririck’s days of presenting were reduced from 80 to 55 days a year and in 2010 this was further reduced to 40 days.

In September 2012, Channel 4 received results of a public survey, which gave opinions on a variety of television presenters and in which Mr McCririck scored badly. On 25 October 2012, Channel 4 notified Mr McCririck of their decision not to retain him as a presenter. His co-presenter, Tanya Stevenson (42 years of age), was retained as a presenter.

In a claim for discrimination the burden of proof usually lies with the claimant, unless the claimant can show facts from which discrimination can be inferred at which point the burden of proof will shift to the employer to prove that there was no discrimination or show that its actions were a “proportionate means of achieving a legitimate aim”.

In the McCririck case the Tribunal found there was sufficient evidence for the burden of proof to shift to Channel 4 on the basis that (i) Mr McCririck’s contract was terminated whereas Ms Stevenson’s was not, and (ii) all other presenters who had their contracts terminated as part of Channel 4’s revamp were over the age of 50.

Although the Tribunal did not make a determination as to whether Channel 4’s decision to remove Mr McCririck was because of his age, the Tribunal found that Channel 4’s aim was to attract a wider audience to horse racing. It held that this was a legitimate aim and that Channel 4’s actions were a proportionate means of achieving a legitimate aim.

While Channel 4 has been successful in defending the age discrimination claim against them a similar case against the BBC was not successfully defended. In O’Reilly v British Broadcasting Corporation and another, the Tribunal held that the BBC’s decision to remove Miriam O’Reilly from the BBC’s Countryfile programme was direct age discrimination. The removal of older presenters was not considered to be a proportionate means of achieving the BBC’s legitimate aim to appeal to a prime time audience, including younger viewers. Both cases have received widespread media attention and despite the similarities between them the respective Tribunals have been able to reach separate decisions. The Tribunal in the McCririck case was persuaded that Channel 4’s objectives were sufficiently “of a public interest nature” to be legitimate. The Tribunal was also satisfied that Mr McCririck’s “pantomime persona… together with his self described bigoted and male chauvinist views were clearly unpalatable to a wider audience.” The conclusion was that these factors, clearly unrelated to age, led to his removal.