Posted by Gemma Ospedale, Partner
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Confusion between direct and indirect age discrimination
McCririck v Channel 4 Television Corporation and others is a case which highlights the Tribunal’s not unusual confusion between the direct and indirect age discrimination requirements. Channel 4’s well known TV personality, John McCririck, was dropped from Channel 4’s coverage of racing when Channel 4 won the exclusive rights to screen all terrestrial racing. Mr McCririck was 72 years old and immediately claimed that he had been dropped because of his age. He brought a claim of direct age discrimination and not indirect age discrimination. Interestingly, he did not bring a claim for unfair dismissal (which on the findings of the Judgement he would almost certainly have won!).
McCririck lost his claim of direct age discrimination. The Tribunal found that the motivation for removing him from national racing coverage was not his age but his public persona, including his reality television appearances and his broadcasting style, which was not in keeping with Channel 4’s desire to present a different image of racing to the public. The Tribunal also found that if there was any discrimination on the grounds of his age it was justified as a proportionate means of achieving those aims.
This latter finding is one which would, or should, have been made had the Claimant brought a claim of indirect age discrimination. He did not; he only brought a claim of direct age discrimination, where the only question the Tribunal has to ask was whether there are facts from which it could conclude, absent any explanation, that the Claimant was treated less favourably because of his age. If there are such facts, the burden of proof then shifts to the Respondent to demonstrate that the actions were not on the grounds of age. Quite why the Tribunal went on to find that, if there was any age discrimination, it was a proportionate means of a legitimate aim, which is the test of indirect discrimination, no one knows.
Given that he had the benefit of representation by a QC, and there have been previous successful claims against television companies for age discrimination by presenters, it is quite surprising Mr McCririck did not bring a claim for indirect age discrimination.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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