The Gamble of Age Discrimination Tribunal Claims

Chris BallSetting aside occasional sporting metaphors of my more whimsical blogs, it is rare that serious discussion of age discrimination appears in sports pages and broadcasts.


However, news of John McCririck’s £3 million claim for age discrimination has drawn as much attention as any Derby day favourite hitting the front coming out of Tattenham Corner.


While it is not part of TAEN’s brief to discourage people from using the employment tribunals in age cases, one might occasionally wonder why they bother. It is all too easy to spend time, energy and a small fortune pursuing lost causes.


The tribunals seem to offer a fitting alternative to the gamblers’ last chance saloon.


People sometimes imagine that that they have nothing to lose even if the facts don’t support them. Sometimes they feel that they simply want to be heard. This may perhaps be the case with John McCririck.


As the Guardian’s racing correspondent Greg Wood writes, “…should it ever come to a hearing he may also see it as one more chance to play to the gallery.”


“The tribunals are not a place of public entertainment,” I can hear the chairman commenting.


The notion that merely because a claimant may know his or her treatment has been unfair he/she will necessarily win the day, is misconceived. Hunches may be fine for picking winners in the 2.30 at Chester, but tribunal claims demand more than a good knowledge of form. All cases are different and direct comparisons are rarely possible.


But who knows? The case may yet turn out in the same way as the Country File case in which a production company simply wanted new and (allegedly) younger faces for its viewers. In that case it dismissed presenter Miriam O’Reilly and as we now know, she won her case against the BBC.


Legal decisions depend on both the law and the facts however. The facts demand evidence and in age discrimination cases the law provides gaps big enough for a coach and four to drive through.


The huge proportion of discrimination claims ending up as withdrawn tells its own story. In the period up to December 2011 only 33 claims were successful whilst 2,980 were disposed of by the tribunals – a tiny one per cent.


It seems unlikely that a tribunal would object to IMG media, the new production company brought in by Channel 4 to replace High Flyer, making changes to their presenter line-up.


The fact that at 72 Mr McCririck is considerably older than his replacement, Tanya Stephenson, will not in itself be sufficient.


But the tribunal system can seem like a game of chance and much may depend on whether some badly briefed executive has blown the gaffe with a silly ageist comment to Mr McCririck.


In legal terms Mr McCririck will have to show that the reason for his dismissal was related to his age. If he can do this his former employer will have to show that they were justified by legitimate grounds for their decision.


Their next hurdle may be to show that the discontinuation of McCririck’s contract was a proportionate measure to whatever grounds they had for their decision – ensuring their viewers and punters had more accurate tips, for example.


The fences for the applicant are of Bechers Brook proportions.


With fitting generosity Mr McCririck has promised that if he is successful he will donate any award to charities supporting those who seek redress from age discrimination.


My heart may be cheering for him but my head tells me not to put my shirt on his largesse!


But with Mr McCririck’s expertise in judging the going, discrimination law may yet be illuminated in unimaginably exciting ways!


If he is a cautious gambler however, he will consider carefully any settlement offered by IMG Sports Media, High Flyer or Channel Four as defenders of the action. (“Perm any one out of three,” as the bookies might put it)


Chris Ball is Chief Executive of TAEN


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