Miriam O’Reilly’s Tribunal win against the BBC for direct age discrimination highlighted the ongoing debate about the perceived treatment of older women in television.
However, it is also important to bear in mind the short shrift the Tribunal gave to the BBC’s argument that replacing older presenters with younger ones was justified as a proportionate means of meeting their legitimate aim (the legal test) of attracting a broader audience including younger people.
The Tribunal held that it would not be proportionate to do away with older presenters simply to pander the assumed prejudice of some younger viewers.
The Equality and Human Rights Commission agree. In their guidance to the new Equality Act, they use an example of a fashion retailer rejecting a middle aged sales assistant on the ground that they wish to attract a younger clientele. The EHRC points out that, while the business aim may be legitimate, this action is likely to amount to discrimination, because it would not be a proportionate means of achieving the aim. The requirement for all sales assistants to have knowledge of the products and fashion awareness would be a less discriminatory means of doing so.
The BBC decision will therefore act as a warning to all employers wishing to appeal to a client base with a particular demographic profile. We’ve also reported the recent Realpubs decision, which came to a similar conclusion.
Employers also need to take notice of Mrs O’Reilly’s victimisation win. The Tribunal found that she had been excluded from taking part in further programmes (apart from a job presenting a Costing the Earth programme on the “environmental cost of ageing”, which she considered inappropriate in the circumstances!) because of the BBC’s annoyance that she had raised the age discrimination complaint. This amounted to unlawful victimisation, and could prove to be the most expensive part of the claim for the BBC.