McCririck can go ahead with age discrimination claim

John McCririck, the former Channel 4 horse-racing presenter, can go ahead with his age discrimination claim against Channel 4 and a TV production company, an employment tribunal has ruled.

McCririck, who is 73, lost his job at the start of this year when there was a change in production companies.

At a pre-hearing review, employment judge Snelson decided that, prior to his departure, McCririck was employed by Highflyer Productions within the meaning of the Equality Act 2010 and the TUPE regulations.

Judge Snelson said the parties agreed that McCririck's contract required him personally to work and "there could be no question of a substitute" appearing on TV instead of him.

However they disagreed over the "central issue" of whether the presenter was employed. Channel 4 and IMG Media, the new production company, argued that he was self-employed.

Judge Snelson said it seemed "plain" to him that the claimant was employed by Highflyer, was integrated into the operation and in a position of subordination.

"The fact that he could command a substantial income and that Highflyer, and more particularly Channel 4, were anxious to retain his services does not prevent the relationship being one of subordination.

"The claimant signed terms which yielded significant control over him to Highflyer and, ultimately, Channel 4. The fact that, on air, little could be done to prevent him from saying what he wanted does not detract from the relationship being one of subordination."

Nor did the fact that he did not shrink from giving Channel 4 executives a "piece of his mind" when his days were cut, the judge said.

"The Allonby concept of subordination is, self-evidently, not confined to workers of low status or to modern-day Uriah Heaps. It is about power and authority.

"A surgeon is no less 'employed' by a hospital trust by virtue of the fact that he is a senior individual of high status who cannot be told, even by the chief executive, how to go about his work in the operating theatre.

"He is bound by the terms of his employment and his salary depends on his fulfilling them. The claimant's subordination is well illustrated by his powerlessness to prevent the steady erosion of his role as a Channel 4 racing presenter.

"For these reasons, there is, in my judgment, no sound basis for characterising the claimant as an independent contractor in business on his account when he contracted with Highflyer in 1997."

Judge Snelson said a case management discussion would take place by telephone on 19 July 2013. Any trial on the age discrimination claim will follow at a later stage.

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