Articles
BBC Loses Age Discrimination Case
You will have no doubt have seen the recent headlines regarding the BBC once again distinguishing itself in the Employment Tribunals, this time for age discrimination against a former employee, Miriam O'Reilly. She was removed from her regular employment, presenting ‘Countryfile' when it was moved to a ‘primetime' slot on Sunday evenings. As a result of this move, and an expressed desire by the BBC to reach a younger audience and ‘refresh' it's image, the then 51 year old O'Reilly and three other female presenters were dropped, However, John Craven was kept, although he was by far the oldest at 68. In the lack of any explanation to the contrary, O'Reilly concluded that she had been discriminated against on the grounds of age and sex.
The Tribunal has now concluded that her claim of age discrimination was legitimate, although that of sex discrimination was not. In effect, it appears that the BBC was driven by an internal cultural agenda which, whilst appreciating equality legislation and the reasons for it's existence, did not adopt this in either it's thought processes or practices.
The Tribunal agreed that if the BBC wished to pursue a younger, more ethnically diverse audience for its programmes that this was a legitimate objective. However, its methods were at fault. No attempt was made to explain how merely changing the ages of television presenters would attract different viewers. No objective evidence or justification was ever advanced or even discussed. The view was that older presenters attracted older viewers, younger ones younger viewers. In addition, it appeared from evidence that malice infected senior BBC figures and O'Reilly was offered few alternative opportunities and these were, incredibly, restricted to programmes dealing exclusively with old age. Added to this, amidst written memos and e-mails dealing with the surrounding issues, nothing was available to describe how the actual decision was taken. That was ‘just how things happened' in a creative environment. The Judge was not convinced by the argument and concluded that O'Reilly had indeed suffered age discrimination. As to her sex claim, it was not made out. Press coverage of adverse comments about female wrinkles, botox, hair colouring and spring chickens was certainly newsworthy, but turned out not to have been made by them. It was accepted that John Craven was a ‘special case': as the senior and only ubiquitous presenter on the programme, he was regarded as its ‘first tier' presenter, and a hypothetical female equivalent would also have been retained. A male ‘second tier' presenter of the same age as O'Reilly would have similarly suffered discrimination on the grounds of his age and so the arguments of sex, and combined sex and age discrimination, were dismissed.
Important lessons can be learned from this affair. Certain areas of discrimination law rightly provide for exceptions on the grounds of objective justification. If one seeks to pursue such a course, there must be clear evidence of the reasons for it. Communication of decisions and the objective reasons for them to those affected (and in the case of a body in the public eye, more widely) is a vital industrial relations tool. Finally, in pursuit of a perceived objective, no matter how worthy, care must be taken that a particular agenda does not conflict with the law as it stands. The alternative can be most unpleasant, as the BBC has discovered.
For more information on the above or for advice on any other employment issue please contact our employment department on 020 7354 3000 or e-mail employment@colmancoyle.com
Author: Aidan Loy
Date published: 13th January 2011