Opinion: BBC case highlights broad spectrum of discrimination

The Employment Tribunal decision in favour of Miriam O’Reilly in her claim against the BBC is a high-profile example of an organisation that expresses clearly its commitment to diversity but which was found to have discriminated unlawfully.

O’Reilly had presented TV programme Countryfile for a number of years. In ­conjunction with the show’s move to a prime-time slot the programme was given a ’makeover’ in which it was determined that the presenters should be changed:
51-year-old O’Reilly was replaced with a younger woman, Julia Bradbury, aged 40. The older male presenter, 68-year-old John Craven, was retained. The evidence presented included references by ­colleagues to her wrinkles and grey hair.

It is reasonable to conjecture that the BBC would have felt it was able to offer a convincing defence in relation to both the age and sex discrimination claims.

In relation to age, they pointed to the fact that 68-year-old Craven was being retained, and as support for the claim that sex was not the issue they highlighted the appointment of a younger woman. Also, the BBC pointed to a need to “refresh the output” of the programme, which ­included the faces on the screen.

The case is a warning to industries in which a premium is placed on beauty and youth in the selection of employees or ­independent contractors, as anti-­discrimination legislation applies to both. The TV, film, advertising and fashion industries immediately spring to mind as being at risk, but the issue is also likely to arise with customer-facing positions across a range of industries, where there may be in practice a bias towards younger staff.

Of particular note in the BBC case is the willingness of a tribunal to find fault with a decision that was fundamentally ­subjective in its nature, the BBC having emphasised throughout that the ­presenting skills of the individuals and not their age or sex were the key issues.

The view was widespread that the BBC’s decision was motivated in part by the ­perception that TV audiences do not wish to see older women. Such audience or ­customer wishes cannot, in any ­circumstances, amount to a defence of a discrimination claim. It is unthinkable, for example, that the BBC would suggest that its audiences were uncomfortable with ethnic minority or disabled presenters. Indeed, the broadcaster has taken great strides in promoting the visibility of such individuals, much to its credit.

In its defence, the BBC referred to its wish to ensure that its presenters reflected the diversity of its audience. The tribunal, however, found that it placed too much emphasis on youth, and in doing so acted unlawfully.

The case also serves to highlight ­provisions in the new Equality Act that allow claims to be brought on the basis of combined characteristics. These ­provisions, which have not yet been brought into force, will allow an individual to identify any two of the ’protected ­characteristics’ (sex, age, race, sexual ­orientation, disability, gender ­reassignment, religion or belief, marriage/ civil partnership and pregnancy/maternity) in order to allege that discrimination arises because of the particular combination, and not because of any one in isolation.

The tribunal concluded that even ahead of the new legislation it was able to deal with the impact of both issues in one claim, but that the introduction of the combined claims will undoubtedly strengthen such cases. O’Reilly’s claim was stronger when expressed as arising from the combination of her age and sex rather than from either of these alone.The case is a salutary reminder that an aim to promote diversity cannot justify disadvantaging groups that are not the main focus of the diversity divide.