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O'Reilly v BBC (ET decision)

10 January 2011

Subjects : Justification; Recruitment

A 51-year-old female TV presenter suffered unjustified age discrimination when her programme was moved to a ‘primetime’ slot and she was replaced by younger presenters.  Whilst the employer’s wish to appeal to younger viewers was a legitimate aim, the dropping of an older presenter in order to pander to their assumed prejudices was not a proportionate means of achieving that aim.

Facts

Miriam O’Reilly, aged 51, was an award-winning television presenter employed by the British Broadcasting Corporation (BBC) on its Countryfile programme about rural affairs and farming.  She also contributed to the BBC radio show Costing the Earth and the Countryfile printed magazine. 

The BBC decided to move Countryfile from its daytime slot on Sunday to a primetime evening slot.  Ms O’Reilly was informed that she would no longer be required to appear on the show as they wanted to attract a significantly larger audience by “refreshing” the existing presenter line-up.  Three other female presenters aged between 42 and 44 and one 43-year-old male presenter were also told they would not be moving forward to the primetime show.  The new line-up included several presenters, both male and female, aged between 26 and 38.  One presenter (a 68-year-old man), who had presented on the show since it began over 20 years earlier, was kept on.

Ms O’Reilly complained to the production team and her colleagues and various news articles appeared in the press speculating about the “ageist” decision to drop her from the programme.  She subsequently brought a claim of direct age and sex discrimination against the BBC.  In addition, she complained that she had been victimised for raising those allegations.  She asserted that, following her complaints, she was only offered one Costing the Earth programme (on the “environmental cost of ageing”) and the possibility of one other. She was also no longer asked to contribute to articles in the Countryfile magazine.

The Employment Tribunal’s Decision

One of Ms O’Reilly’s submissions before the Employment Tribunal was that she had been subjected to a joint combination of age and sex discrimination.  The BBC pointed to the fact that the Equality Act 2010 included a specific provision – not yet implemented – outlawing “combined” or “dual” discrimination on the basis of two protected characteristics (section 14).  Since that measure was not yet in force, the BBC argued that combined discrimination could not be unlawful under current anti-discrimination legislation.  The Employment Tribunal found that this reasoning was flawed, stating that a woman’s sex or age need not be the “sole or principal reason” for the detrimental treatment in question.  It was possible to claim discrimination on both grounds under existing law if they significantly influenced the reason for the treatment.

A central element of the BBC’s defence was that its decision was based on criteria that the presenters for the new slot required: a profile that would make them familiar to peak-time audiences; an ability to present shows in an “immersive manner”; and knowledge of rural affairs.  However, the Tribunal found that there was no record of candidates having been assessed against those criteria.  Rather, the key witnesses for the BBC had “offered the complacent explanation that this is just the way things are done in the media world”.  On the evidence, the Tribunal refused to accept that criteria were devised and adopted as the BBC suggested.

In relation to age discrimination, in the absence of defined and consistently applied selection criteria, the Tribunal found that BBC’s decision to appoint the new presenters was influenced by their age.  The age profile of the primetime presenting group had been reduced significantly and, although the long-standing presenter aged 68 had been retained, he was a well-known figure which made his position unique.  The evidence suggested that the BBC was essentially looking for younger, more diverse talent to replace the existing presenters and thereby refresh and rejuvenate the programme.  Their “comparative youth” had been a significant factor, whereas Ms O’Reilly’s age had been key factor in the decision not to consider her.  Accordingly, she had been subjected to direct age discrimination.

That was, however, not the end of the matter because direct age discrimination can potentially be objectively justified in the UK (unlike direct discrimination on other protected grounds).  The Employment Tribunal therefore considered the BBC’s alternative argument that their actions had been justified by the aim of appealing to a wider audience, including younger viewers.  Although accepting this was a legitimate aim, the Tribunal found there was no evidence to suggest that choosing younger presenters was required to appeal to such an audience.  In any case, it would not be proportionate to pass over older presenters simply because of the assumed prejudice of younger viewers. The BBC’s objective justification therefore failed.

With regard to sex discrimination, the Employment Tribunal rejected the contention that the claimant’s gender had been a significant factor, either alone or in combination with age.  The outcome would have been no different had Ms O’Reilly been a man of the same age with the same skill set, because the “element of comparative youth” would still have been missing.  The Tribunal noted that certain sexist comments to Ms O’Reilly by colleagues were not made by those with responsibility for the decision as to whether or not she was to be kept on for the primetime Countryfile show.  That decision was not due to her sex but on the basis of her age alone.

Finally, in relation to Ms O’Reilly’s complaints of victimisation, the Tribunal found that the decision no longer to involve her in the Countryfile magazine had resulted directly from annoyance surrounding her allegations of discrimination.  Moreover, offering Ms O’Reilly the Costing the Earth programme on ageing was a deliberate act of the BBC that made her feel she could not present, resulting in her stepping down as a presenter on the programme. Both these incidents amounted to unlawful victimisation.

The judgment is available here.

O'Reilly -v- BBC and others, London Central Employment Tribunal, case number 22004223/2010