Employment law can be something of a minefield when dealing with the entertainment industry. By its very nature, with its need to respond to consumer/viewer demands, contracts have tended to be short term in nature. However, where major television networks are concerned, there is something of a duality at work. On the one hand, networks produce entertainment on a programme by programme basis, forming contracts with those working on them in the manner described above. On the other hand, however, networks are major employers of full-time workers behind the scenes in the cast administrative apparatus that supports the production of their content. The past few years have seen a number of high-profile cases come to court which highlight this duality as well as something of a grey area where long term presenters are ruthlessly cast aside. The courts have applied the law accordingly, but the disparate nature of the decisions underlines the need for greater engagement from networks with employment best practice and sound contractual negotiations.
2013 saw two high-profile cases come to the Employment Tribunal. The cases of Stella English and John McCririck respectively received widespread media interest. English, a former winner of the BBC’s popular television programme had brought a constructive dismissal case of Lord Sugar’s Amshold group whilst McCririck had lodged a claim on the basis of age discrimination which saw him discontinued as host of Channel 4’s racing programming. Neither claim was successful.
Stella English was given a £100,000 a year position in Sugar’s company Viglen subsequent to her triumph on the reality television show in 2010. However, she resigned from this position in May 2011 whereupon she was given a different job within Amshold, at YouView. She resigned from this position too in December of that year, claiming that her job had been a “sham” and that she had been an “overpaid lackey”. She also claimed that, in a meeting with Lord Sugar in September 2011, she had been told that she was only in her new position for the integrity of the BBC and of the Apprentice and that her contract would be terminated in December of that year.
In a somewhat damning ruling, the tribunal found that the conduct English described “either did not occur or did not amount to conduct which destroyed or seriously damaged trust and confidence”. In doing so, the tribunal also accepted Amshold’s claim that English had “…deliberately courted the media with a view of damaging his (Sugar’s) reputation.” The tribunal declared Ms. English’s claim “one that should never have been brought”, stating that there was no basis for her claim as she had resigned from the position.
November 2013 saw a ruling handed down in the case of John McCririck, the high-profile racing pundit and latter-day reality television antagonist, who brought an age discrimination case against Channel 4 and IMG Media. His case alleged that the decision of Channel 4 to discontinue the employment of McCririck as a lead presenter on Channel 4 racing was taken solely because of his age. McCririck had been a fixture on Channel 4’s racing coverage
In presenting its defence, Channel 4 stated that the decision not to employ McCririck was taken as a result of its gaining the rights to the Crown Jewels of British horse racing and an attempt to overhaul the image of its racing team to appeal to a wider demographic. It was felt that McCririck’s public image, in his appearances on various reality television programmes such as Celebrity Big Brother, was one of a loud, boorish, chauvinist and that such an image was not commensurate with one the broadcaster was hoping to project in the future.
The tribunal ruled that McCririck had no case on the basis of age discrimination and found that much of his evidence would have been better fitted to an unlawful dismissal claim. McCririck had pointed to evidence such as the fact that of all the former presenters on the racing team the only one kept on was also the only one under fifty. The tribunal found that this evidence was sufficient to shift the burden of proof from McCririck to Channel 4, but ultimately found that as Channel 4’s ultimate aim was to appeal to a wider audience, their aim was legitimate and the means of achieving that aim were proportionate as his “pantomime persona… together with his self-described bigoted and male chauvinist views were clearly unpalatable to a wider audience.”
The tribunal did, however, heavily criticize individual Channel 4 directors for a lack of leadership, failing to take advice from their human resources department or procuring any job descriptions for the positions and for generally failing to adhere to best practice where such matters are concerned.
This case bore some resemblance to that of O’Reilly v British Broadcasting Corporation (2011). In that case, however, Miriam O’Reilly, BBC presenter on their programme Countryfile, won her claim for age discrimination against the national broadcaster. The BBC had fired four presenters, all in their forties or fifties, apparently without justification. Pivotal in giving evidence in that case was Jay Hunt, BBC controller at the time of the dismissals and now Channel 4’s Chief Creative Officer. The Guardian described that ruling as a “significant embarrassment” for Hunt and she did not emerge unscathed in McCririck’s case either, having been singled out for criticism by the tribunal amongst other directors.
All three of these cases have underlined the importance of media outlets to maintain sound and legal policies with regards to the hiring and firing of what might be termed “talent”. In an industry that bestrides both the flaky world of entertainment where actors are hired or fired specifically because of their physical suitability for parts and where a good story trumps a accurate one, and the corporate world where the better part of the last half a century has been spent refining laws that seek to ensure discrimination is minimized, such organisations must be especially careful when balancing on that fine rope between fair and equitable and discrimination.
The presence of celebrities in the courts has brought into focus the complexities of employment law. It shows that rulings can hinge on a small point of law, as in McCririck or O’Reilly, or indeed that there is no basis at all for a claim, as in Stella English’s case. The unique nature of the entertainment industry may well call for specific guidelines to be drawn up in order that in the future both media organisations and their employees have a better understanding of how to deal with one another.