O'Reilly v BBC – auntie guilty of age discrimination

17/02/2011

By Nick Hobden, Partner and Head of Employment

Miriam O'Reilly's age discrimination claim against the BBC has garnered significant media attention since the decision was handed down last month. In this article, we explain the grounds on which the BBC was found to have discriminated against and victimised Ms O'Reilly for reasons relating to her age.

The facts

Ms O'Reilly was previously one of the presenters of 'Countryfile'. But in 2008, the BBC decided to move the programme to a prime time slot on Sunday evenings. As part of the re-vamp, a number of the presenters were replaced; they were Miriam O'Reilly (aged 51), Charlotte Smith (44), and Juliette Morris (43). Two new presenters were brought in: Matt Baker (30) and Julia Bradbury (38). In addition, there were 'second tier presenters': Jules Hudson (38), Katie Knapman (36) and James Wong (26).

Ms O'Reilly brought a claim, arguing that her removal from Countryfile amounted to direct discrimination on the grounds of her age and sex. She also alleged that she had been subjected to victimisation; the BBC had failed to offer her other work, whether on television or on the radio, after she had raised concerns regarding her treatment.

Decision

Whilst Ms O'Reilly's claim of sex discrimination was rejected, the Employment Tribunal (ET) upheld her claims of age discrimination and victimisation.

The BBC sought to justify its appointment of new presenters by arguing that it needed people with higher profiles. But it was noted that the new second tier presenters did not have the profiles to substantiate this. The BBC further sought to argue that even if its decision could be said to be age discriminatory, it was objectively justifiable. In fact, the ET found that the BBC's aim of attracting younger viewers was a legitimate one. However it rejected the idea that the BBC could, as a result, remove older presenters based on the assumption that younger viewers were likely to hold prejudicial views about them.

Taking the above into account, the ET decided that age had played a significant role in the BBC's decision not to retain Ms O’Reilly. On the basis that this conduct could not be justified, the BBC were guilty of unlawful age discrimination.

In terms of the allegation of victimisation, the ET ruled that the BBC had been annoyed by Ms O’Reilly’s complaints of alleged discrimination. The ET further concluded that this was the reason why the BBC had not used Ms O'Reilly on other projects.

Comment

In some respects, this case is not all that remarkable. But it is noteworthy simply because of the level of media attention that it has attracted. It has certainly raised the profile of age discrimination and there is the prospect that it could be the catalyst for further claims, not only in the media but in other areas too.

Despite the law having come into force a few years ago now, age discrimination has often been an afterthought to most and overlooked by many. But with this case and the planned changes to the default retirement age hitting the headlines of late, age issues are becoming much more widely recognised. Employers should bear in mind that the average employee is now far more aware of the law and their rights in relation to age and therefore employers need to be too.