UK Employment Law. Insight. Age discrimination: A reminder. McCririck v Channel 4 Television Corporation. January By Nick Marshall, Associate

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1 January 2014 UK Employment Law Age discrimination: A reminder McCririck v Channel 4 Television Corporation By Nick Marshall, Associate The recent judgment of the Employment Tribunal in the John McCririck age discrimination case was a high-profile reminder of the potential difficulties facing employers in relation to a complex area of the law. Although the McCririck case itself did not raise any novel points of law, it provides an opportunity to reflect on the key points employers need to be aware of in order to limit their exposure to claims by employees of age discrimination. The facts Mr McCririck was a presenter of horse-racing coverage for Channel 4. He is also well-known amongst the public for appearing on reality television programmes such as Celebrity Big Brother and Wife Swap and for his forthright views (accepting at the Tribunal that he was a loud mouthed bigoted bore ). In March 2012, Channel 4 secured the rights to broadcast horse-racing on terrestrial television. It issued a press release and a document which invited production companies to tender for its horse-racing work, which together emphasised Channel 4 s desire to bring horse-racing to a new, younger and broader audience. Channel 4 undertook market research into various television presenters, including Mr McCririck (who scored badly). Channel 4 decided that Mr McCririck (who was aged 72 at the time) would no longer present its horse-racing coverage although his co-presenter (aged 42) would be retained. Mr McCririck s brought a claim against Channel 4 for direct discrimination on the grounds of age. 1

2 The decision The Tribunal dismissed Mr McCririck s claim for age discrimination. Although there was sufficient evidence to shift the burden of proof to Channel 4 to show that age discrimination did not occur, the Tribunal made no express finding that Mr McCririck was removed as a presenter because of his age (which is surprising as this test must be satisfied for a claim to be successful). Instead, it found that Mr McCririck was removed because of his persona and because of his presenting style (which was not in keeping with the new approach to horseracing that Channel 4 wanted to adopt). Although a finding that Mr McCririck was not dismissed because of his age would have been sufficient to dismiss the claim, the Tribunal also went on to find that direct age discrimination would have been objectively justified because: > Channel 4 s desire to attract a wider audience to its horse-racing coverage was a legitimate aim; and > Channel 4 s decision to remove Mr McCririck was a proportionate means of achieving that legitimate aim. Age discrimination: Key points > Equality Act. Age is one of the protected characteristics under the Equality Act 2010 (the Act ). > Scope. Employees, workers and prospective candidates are all protected under the Act. > Direct discrimination. An employer will directly discriminate against a protected individual if it treats the individual less favourably than others because of his age. For example, refusing to employ or promote an individual because he is above or below a prescribed age would be direct discrimination. > Indirect discrimination. An employer will indirectly discriminate against a protected individual if it applies a provision, criterion or practice which disadvantages the protected individual because of his age. For example, implementing a recruitment practice whereby individuals are only hired if they have a specified number of years of experience would be indirect discrimination, regardless of skills and type of experience (as it is likely to be more difficult for younger persons to satisfy this requirement) > Harassment. An employer will be liable for harassment on the grounds of age if it (or an individual for which it is vicariously liable, such as an employee) acts in a way which violates a protected individual s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for that individual because of his age. > Victimisation. An employer will be liable for victimisation on the grounds of age if it (or an individual for which it is vicariously liable, such as an employee) subjects a protected individual to a detriment because that 2

3 individual makes a complaint under the Equality Act or gives evidence in proceedings in connection with the Equality Act. For example, if an employer refuses to promote or pay a bonus to an employee because he has raised a grievance about poor treatment on the basis of his age, this would amount to victimisation. > Burden of Proof. As with other forms of discrimination, if the individual claimant can show facts from which discrimination can be inferred, the burden transfers to the employer to prove that there was no discrimination. In the McCririck case, the burden transferred to Channel 4, because Mr McCririck established that his engagement was terminated whilst that of the younger racing presenter was not and that all of those whose engagements were terminated were over 50 years old. > Justification. Unlike other protected characteristics, direct discrimination as well as indirect discrimination can be justified, if the discrimination is a proportionate means of achieving a legitimate aim. Age discrimination: Common practical issues > Retirement Since the abolition of the default retirement age, any retirement dismissal is potentially discriminatory and therefore must be objectively justified if the employer is to avoid liability. It is also potentially unfair as retirement is no longer a fair reason for dismissal under the Employment Rights Act Three steps to justifying direct age discrimination in the retirement context 1. Identify a legitimate social policy aim The legitimate aim identified by the employer for directly discriminating against an employee on the grounds of age must be a social policy objective. The Supreme Court has suggested that such objectives will usually either relate to inter-generational fairness (e.g. offering opportunities to encourage younger workers to participate in the workforce) or dignity (e.g. avoiding humiliating older workers by dismissing them on the grounds of capability). An aim which relates solely to the employer s business (e.g. reducing the wage bill) will not be a legitimate aim. 2. Establish that the social policy aim is legitimate in the particular circumstances of the employment concerned For example, if access widening to employment for young people is the stated aim, the employer should have evidence to back this up in relation to its own organisation. If widening access to employment for young people is not an issue for the employer it will not be legitimate for it to pursue this social policy aim. Ideally an employer will document 3

4 evidence in support of pursuing the social policy aim in the employment concerned. 3. Establish that the means chosen to justify the social policy aim are proportionate (being both appropriate and necessary) Could the same aim be achieved equally, or more proportionately, with a higher retirement age or some other measure that has less impact on employees? Social policy aims related to dignity are likely to be harder to justify proportionately by the imposition of a fixed retirement age (particularly a low age), as performance and capacity often do not correlate to age. Consideration of alternatives should ideally be documented. > Enhanced redundancy schemes Many enhanced redundancy schemes provide for payments to be made by reference to a person s age and, usually, length of service. On the face of it, this constitutes age discrimination. However, the Act specifically provides that an enhanced redundancy payment paid in accordance with a structure which follows the statutory redundancy payments formula but does not apply a maximum amount or uses a multiplier greater than that prescribed will not be discriminatory on the grounds of age. An example is an entitlement to four weeks actual pay per year of service. > Benefits The provision of insurance benefits, in particular, can be an issue for employers with an older workforce. Premiums for income protection, medical and life assurance, for example, can be significantly higher for older workers. Under the Act, there is a specific exemption allowing employers to end the provision of insurance benefits to employees who are older than the greater of 65 or the state pensionable age, without discriminating on the grounds of age, so long as the insurance benefit is otherwise provided to the employer s employees through a third party (unless the employer s business is the provision of insurance or financial services, in which case the insurance can be provided directly). > Positive action Positive discrimination is not generally permitted under the Act. However, as a result of provisions allowing for positive action in the Act, in certain circumstances, employers can provide advantages to individuals which might otherwise constitute age discrimination. An example is the provision of training on new technology to older employees, if it is identified that these employees as a group suffer a disadvantage in relation to technology products in the workplace as a result of their age (although actual identification rather than an assumption of such a disadvantage is of course necessary). In these circumstances an employer could provide proportionate tailored training not available to younger employees in order to enable the older employees to overcome the identified disadvantage. 4

5 Proportionate positive action can also be taken where employees of a certain age (old or young) are identified as having different needs from employees of a different age or where their participation in an activity is disproportionately low. 5