John McCririck age discrimination case: the final furlong

The newspapers have reported keenly on racing pundit, John McCririck’s, employment tribunal hearing this week.

The 73 year old racing pundit has brought an action for age discrimination against his former employers, Channel 4. Aside from being dropped from the Channel 4 presenting team; McCririck has also criticised the fact that he found out about his dismissal from sports editor at Channel 4, Jamie Aitchison, whilst he was away on holiday, that no notice was given nor a meeting arranged to discuss his termination.

Channel 4 has presented in its defence that their concerns over McCririck’s style and decision to terminate his employment are supported by audience surveys, press coverage and viewer complaints and that his “pantomime style” of exaggerated delivery was incongruous with the more serious, measured and journalistic style proposed for the programme from 2013. Whilst being cross-examined by Counsel for Channel 4, McCririck added that nobody ever questioned his professionalism or asked him to change his style.

These factors, in combination with witness evidence provided by former Channel 4 racing presenter Lesley Graham who also believes her presence on Channel 4 was cut to make way for Emma Spencer (31) and Alice Plunkett (36) when she was due to turn 50 in 2010, have led McCririck to believe that the real reason for termination of his employment is his age.

McCririck’s claim brings to mind the case of O’Reilly v British Broadcasting Corporation (BBC) and others where Countryfile presenter, Miriam O’Reilly, successfully brought a claim for direct age discrimination and age victimisation against the BBC. In this case, the fact that the BBC were trying to attract younger viewers was a prominent fact as it was a legitimate aim for the BBC to pursue. However, the choice to replace O’Reilly with younger presenters to achieve that aim was not accepted by the tribunal.

In order to prove direct age discrimination, McCririck will be required to establish a basic case by demonstrating there are real or hypothetical comparators of a younger age group who would have retained their employment in the same circumstances. Channel 4 will then be expected to show that they did not treat McCririck less favourably than such specified comparator(s).

This may be difficult for McCririck to demonstrate, as his replacement Clare Balding (42) appears to have been chosen by Channel 4 for her more serious journalistic style and not due to her age. However, in referring to John McCririck as “old-fashioned”, will it be found that this is the real reason for the decision and that Channel 4 has fallen foul of the same approach taken by the BBC in the O’Reilly case?

As the O’Reilly case addressed; fear of aging, particularly for women, will continue to be a primary concern for prominent figures in the media but as was reiterated by the judge in the O’Reilly case, the decision to terminate employment must be considered on the merits of the individual decision and not based on such general concerns.

Currently, McCririck’s hearing is ongoing and is expected to last until the end of next week and it has to be borne in mind that judgment in the case could be reserved meaning we may have to wait a while to find out whether the odds are in McCririck’s favour.