Reason to dismiss must be substantial

X Factor judges seem not new enough to hold viewers interest

The X Factor has just celebrated its tenth birthday with two special shows. Love it or loathe, it has become intertwined in the pop culture psyche with a Saturday night “event” that marks the countdown to Christmas, and is virtually impossible to avoid.

That said, as with most things, over time its popularity has diminished. Down to averaging eight million viewers from a peak a few years ago of around 20 million, the popular technique of switching the judging panel is reported to be on the cards. The multitude of line-up changes over the decade shows that the judges too must have that impossible to define X factor to keep the viewers’ interest – and then keep that sparkle.

What about in the real world? If an employee ceases to evoke that “feeling” which helped separate them from the pack, can their employment lawfully be terminated because their face no longer fits?

In October, aged 72, racing pundit John McCririck was dismissed by Channel 4. He took his case to the Employment Tribunal, claiming he was unfairly dismissed on grounds of his age. What is interesting is not the age discrimination point, rather the suggestion in an unclear judgment that the grounds for dismissal were his personality, not his age. The law in this area is such that the dismissal of an employee may be fair if the employer can show that it is for one of the five potentially fair reasons for dismissal under the Employment Rights Act 1996, the fifth being for some other substantial reason (”SOSR”).

Fair procedure

For a SOSR dismissal to be fair, the employer must firstly show SOSR is the sole or principal reason for the dismissal, and then that the decision to dismiss was reasonable in all the circumstances (including the size and administrative resources of the employer’s undertaking). The tribunal will consider whether the employer followed a fair procedure.

It will not be lawful to dismiss employees on the grounds of personal quirks or low-level personality clashes or simply because their faces no longer fit, unless those grounds amount to SOSR. Difficult members of staff and personality conflicts in a team can be damaging not only to the effectiveness of a business, but also the morale of a team, and this can amount to SOSR. Provided a proper procedure has been followed, then the injustice to the employee will generally be overcome by the employer’s need to dismiss.

To set the scene in relation to McCririck, in September this year IMG Media Limited, an independent production company, won a tender with Channel 4 to take over production for key events in the racing calendar. It received market research analysis in which McCririck did not score well, with a survey finding that 68 per cent of those participating did not enjoy viewing him. The aim in making presenter changes was to “strike a balance between what currently works whilst bringing a fresh feel to the experience that will attract a younger audience”. The Employment Tribunal felt this was objectively justifiable.

Mr McCririck had, in recent years, not been a stranger to reality television himself, making appearances on Celebrity Big Brother and Celebrity Wife Swap – neither of which endeared him to Channel 4 viewers. It seems to have been his arrogant and confrontational comments, not in keeping with Channel’s 4’s new aims, which may have been the final nail in his coffin.

Backlash

Channel 4 could be seen to have taken a measured approach, particularly when contrasted with some recent events abroad, including the dismissal and suspension of female presenters in Turkey and Norway respectively for wearing a low-cut top and a Christian cross on air. If such a fate had befallen Holly Willoughby following the barrage of criticism for her wardrobe choices on yet another reality television programme, there would certainly have been backlash.

In July Kate Bostock quit her post as Director of Product at rising star fashion brand Asos, six months into the role. While the decision was hers, outcry was prompted by comments from the founder that “strategy wasn’t the issue. It was more about cultural fit and time of life”. The average age of the Asos employee is 27 or 28 and its primary target market is in its twenties. There clearly wasn’t a fit in terms of Asos’ ethos and those of Ms Bostock’s former charges – M&S, Next and Asda – and there was a mutual parting of ways. But, what if Ms Bostock had not agreed? It would be hard to see how having an arguably “older” viewpoint could amount to SOSR.

An employer who wants to consider terminating employment for SOSR must follow the usual investigation, dismissal and disciplinary procedure and, as a general rule, should always raise the issue with an employee as soon as it arises – and give them the opportunity to change their approach before action is taken.

• Pamela Abbott is a solicitor with CCW Business Lawyers www.ccwlegal.co.uk