Yesterday it emerged that former Channel 4 horse-racing pundit John McCririck is chomping at the bit to sue Channel 4 and a second company, IMG Sports Media, for age discrimination (and presumably unfair dismissal) over its/their decision to fire him last year. McCririck is arguing that he was ousted because he is 72 years old and the broadcaster wanted a more youthful presenting team. The fact that they appointed Claire Balding as chief presenter does not seem to have put Mr McCririck off his claim – just one of the 13 presenters in the new line-up is over 50 years old, he says.
This case echoes the landmark case brought against the BBC in 2011 by the former Countryfile presenter Miriam O’Reilly. Ms O’Reilly took the BBC to an Employment Tribunal for age and sex discrimination (including a victimisation claim) after she and three other presenters were dropped from the show and replaced with younger hosts. Whilst direct age discrimination is in theory capable of being justified, as the BBC found, it is a very high hurdle (or fence, in the case of Mr McCririck) to clear. In that case the Employment Tribunal found that although the desire to appeal to younger viewers was a legitimate aim, the appointment of younger presenters at the expense of older presenters was not a proportionate means of achieving it.
In terms of compensation, Mr McCririck, who alleges that he was fired without “consultation or cogent explanation”, is quoted as looking for £500,000 for “loss of future earnings, unfair career damaging, public humiliation, stress and mental anguish” and £2.5m for “exemplary punitive” damages. The Respondents have felt it less necessary to conduct the threatened action via the newspapers, so their position on those specific contentions is unknown. Mr McCririck has gone out of his way to stress the no-win, no-fee nature of his legal representation and it is hard to avoid the suspicion that this is reflected in the size of his claim.
Whilst Mr McCririck may, in the wake of the O’Reilly case, think that he’s odds on to win his claim, he may well fall in the home stretch in his efforts to obtain the £3m damages that he is after. Without knowing Mr McCririck’s earnings, it is difficult to speculate on his claim for £500,000 which appears to comprise loss of earnings (uncapped if he is successful in his discrimination claim) and injury to feelings (again awarded if discrimination is found and in theory uncapped but unlikely to exceed £30,000 in practice). If he were to show that he had lost his job through age discrimination, the sum is not totally out of reach, let us put it that way.
However, his claim for exemplary damages of £2.5m is a bit of a long-shot. Such awards are the only form of discrimination damages designed not to compensate the Claimant but instead solely to punish the wrongdoer. They could in theory be awarded here if Mr McCririck’s discrimination claim goes the distance and the Tribunal is satisfied that the Respondents’ conduct was calculated, i.e. they concluded that it was worth the risk of having to compensate Mr McCririck if he brings a Tribunal claim as the profit made through replacing him would outweigh any compensation payable. As the awarding of exemplary damages for discrimination claims is relatively recent, there is little case-law. It is clear though that such awards are rare and even if one is made in this case, an award of £2.5m is certainly not something I would bet on.