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Thursday, 31 January 2013

Can sports presenters get out of date?

In sport, age and ability is often seen as being closely linked. As an athlete gets older they become slower; they win less and get picked less. In football the impact of age is even more transparent as a player's value in the transfer market will be openly and directly linked with their age and the number of 'playing years' they have left. Age discrimination though is unlawful and legal advice should be sought. Age is one of nine "protected characteristics" covered by the Equality Act 2010. Uniquely though age is the one characteristic that will apply to all employees. The term 'employees' here is used in its widest context in that this covers all types of worker including those working under any personal contracts in sport. Despite this age discrimination is hardly ever mentioned in the world of sport. The legal test In order for a claim of direct age discrimination to succeed the claimant has to show that the less favourable treatment is "because of" age. The appropriate test is to consider the "reason why" the employee was treated less favourably i.e. what was the employer's conscious or subconscious reason for the treatment? In practice a claimant will usually point to another person in a similar position with the same employer – the comparator – who is of a different age group. They will then try to show that they have been treated less favourably than this comparator on grounds of their age. There may also be allegations that a 'provision, criterion or practice' applied by the employer, which is neutral, puts people of a certain age group at a particular disadvantage. This would amount to indirect age discrimination. However when faced with an age discrimination claim, direct or indirect, the employer will have a valid defence if able to show that the treatment or policy is justified. In legal terms, the statutory defence will only be established where it can be shown that the alleged act of discrimination was "a proportionate means of achieving a legitimate aim". A clear 'pass' for everybody employed in the sports world? Sports presenting Well no, not everybody it seems, as the news in January was that former Channel 4 Racing pundit John McCririck has started legal proceedings alleging age discrimination on the basis that he has been dropped from the show because of his age. He is apparently 72 years of age whilst it is reported the new presenter will be the younger Clare Balding. It is possible that Mr McCririck’s claim may fall at the first hurdle of demonstrating that he is an "employee". Often the services of media stars are engaged through a third party company or in a consultancy capacity, usually for tax reasons, so we will have to watch this space. Further it remains to be seen whether an Employment Tribunal will find that the reason for dropping him was his age. If it does then it will still be an issue whether the decision by the broadcaster was nevertheless justified. Was there a good reason for the treatment in question? Assessing whether potentially discriminatory action can be justified is essentially a balancing exercise. The disadvantage caused to the employee will have to be balanced against the negative impact on the employer. The disadvantage to Mr McCririck would be his loss of income. It may be that the employer is able to show that his retention could lead to falling viewing figures. It could be argued that maintaining an audience is a legitimate aim and not renewing the presenters contract after he had reached the age of 72 was a proportionate means of achieving the aim. However such arguments were rejected in the age discrimination case of O'Reilly v British Broadcasting Corporation which involved Countryfile presenter Miriam O'Reilly. Her claim of age discrimination succeeded after she was dropped from the TV series. In particular an Employment Tribunal did not accept the decision was justified on the grounds younger presenters were required in order to appeal to a younger audience. It was considered not proportionate to "do away with older presenters simply to pander the assumed prejudice of some younger viewers". How much money? Once a finding of discrimination is made the Employment Tribunal will usually award compensation to the claimant. This will reflect losses resulting from the discriminatory act. Clearly this will include wages and other benefits that the individual has been deprived of on grounds of their age. It will also include a sum to reflect their 'injury to feelings'. This is the emotional upset that they have suffered as a result of the discrimination. The exact sum that will be awarded in this respect is always difficult to gauge as it will depend very much on the individual and how the discrimination has affected them. As a minimum it would be £600 and in the most serious cases it could reach as high as £30,000. One unusual facet of discrimination claims is that they can be brought against named individuals in addition to the employing company. The decision in question may have been taken by Mr Y as part of his job. So, for example, in addition to X Ltd being named in the legal proceedings, Mr Y, who could be the manager, coach or any other employee, can also be named as a party that is required to respond and defend the claim. That's not the worst news for the unsuspecting individual respondent, if the discrimination claim succeeds the compensation is awarded on a joint and several basis. That means the full award can be claimed from the individual rather than the employer. The normal practice is for the award to be paid by the employer as it will have more funds available. However we have seen on all too many occasions in recent years that sporting concerns can get into financial difficulty and if that does happen it could leave the individual liable for the whole award to the claimant. Bio The Sports Reputation Group is a new and unique entity offering complete media management and reputation management exclusively for clients in sport.

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