So why did John McCririck lose? The simple answer is that I don’t know. And that’s a problem because I have read the 44 page Employment Tribunal decision. Explaining why one side has won and the other has lost is the most basic requirement of an ET decision, and I don’t think this one stands up to scrutiny.
The actual issues in the case were relatively straightforward. Did Channel 4 stop Mr McCririck from working as a presenter on Channel 4 Racing because of his age? If they did then the next question was whether that was a ‘proportionate means of achieving a legitimate aim’.
On this point, age discrimination works differently than discrimination based on the other protected characteristics Usually, there is no defence of ‘justification’ to a claim of direct (as opposed to indirect) discrimination.
In direct age discrimination, however, that defence is available. The employer has to show that the discrimination was a ‘proportionate means of achieving a legitimate aim’. This is a well worn phrase in employment law borrowed from indirect discrimination where a defence of justification has always been available. We will come to how the defence applies in Mr McCririck’s case a bit later
The burden of proof in a discrimination claim is a bit complicated. I’ve written about it here, but basically, if the Claimant can show facts from which discrimination could be inferred in the absence of an adequate explanation, then the burden of proof passes to the employer to prove that discrimination did not occur.
Generally that means that the Tribunal should first of all consider whether the facts can support an inference of discrimination, followed by an assessment of the employer’s explanation for the treatment.
In its decision the Tribunal spends a good deal of time detailing the evidence that they heard. There were certainly some references to age in the consideration of Mr McCririck’s role, but it was mostly about the age of the audience that he attracted rather than his age that seemed to be in issue. The employer insisted that their objection to Mr McCririck was based on his over-the-top persona.
Its important to recognise that Mr McCririck was not claiming unfair dismissal. The question was not whether Channel 4 behaved reasonably in deciding to replace him. The only question is whether the decision was influenced by his age and – if it was – whether that was justified. The fact that he may have been treated unfairly is not in itself enough to raise the inference of discrimination. Employers behave unreasonably for lots of reasons.
At Paragraph 120 of its decision, however, the Tribunal decides that there is enough evidence for the burden of proof to pass to the employer. Two factors are key. One is the retention of a younger presenter and the other is the fact that none of the presenters dismissed as part of the revamping of the programme were under 50. The tribunal goes on to say:
‘in these circumstances, it is for the Respondent to demonstrate that the treatment of Mr McCririck was a proportionate means of achieving a legitimate aim’
But that is simply not right. Once the Tribunal has decided that the burden has shifted it must then consider whether the employer has proved that there was no discrimination. It is only if they have failed in that- and the tribunal concludes that age really was the reason for the less favourable treatment – that the issue of whether it is a proportionate means of achieving a legitimate aim comes into play.
However the Tribunal seems to make no finding that I can see as to whether it accepts the employer’s explanation that dropping Mr McCririck had nothing to do with age. This baffles me. It is the central question of the whole case. Six days of evidence were devoted to the question of why Mr McCririick was dropped and yet, having spent nearly 40 pages discussing that evidence the Tribunal makes no finding on it.
At paragraph 136 the Tribunal does say that Mr MCririck was dismissed ‘because of his persona’ which would suggest that the employer’s explanation was accepted. However this paragraph is an aside, concerned with whether the second respondent – IMG Media Ltd – had assisted Channel 4’s unlawful act. It is far from being a finding that age was actually nothing to do with replacing Mr McCririck and in any event it is unsupported by any reasoning.
At Paragraph 121 the Tribunal goes on to consider justification. There is no indication that this is a ‘just in case we’re wrong’ part of the judgement. The context makes it clear that this is the issue on which the case turns. Logically that can only be the case if the Tribunal has rejected Channel 4’s explanation and found that there was age discrimination.
On justification, the Tribunal identifies the aim of Channel 4 as being that ‘horse racing should be brought to a wider audience’ (para 124). In cases of direct age discrimination the aim of the employer can only form the basis of the justification defence if it has some public interest nature and the Tribunal held that in the context of horse racing coverage on television the aim of reaching a wider audience met that test.
I think the Tribunal is wrong about that. Reaching a wider audience has nothing to do with intergenerational fairness in employment – it is essentially a business aim analogous to a shop that wants to attract younger customers. There is fertile ground for an appeal here.
The Tribunal then goes on (rather briefly) to find that the employer’s means of achieving that aim (sacking Mr McCririck) were proportionate. There is no discussion of what alternatives might have been adopted to achieve the same aim – including a change in Mr McCririck’s role. Frankly this part of the judgement has a rushed ‘OMG I need to hand this essay in first thing tomorrow’ feel about it. If the Tribunal has found that Mr McCririck was sacked on the basis of his age, then he deserves rather more consideration than this of whether the employer’s actions were proportionate.
What on earth has gone on here? How can such a high profile case result in a written decision with such a glaring gap in the reasoning? At first I thought that the Tribunal might have deleted part of its decision by mistake, but reading Para 120 it is clear that they simply thought that having found that the burden of proof had shifted, they had to go on to discuss justification. That is simply wrong and both parties are entitled to be cross about the mistake.
If I were Mr McCririck, I would appeal. There is a serious legal point about the nature of the employer’s ‘aim’ in justifying direct age discrimination and a clear argument that the Tribunal must have found (even if they failed to say so explicitly) that discrimination had occurred. However even if an appeal is won, the most likely outcome is that we would have to run the whole case again.
PS I hope readers appreciate the complete absence of any puns about odds, falling at the first fence or stewards’ enquiries in this post