Miriam O'Reilly’s successful age discrimination case against the BBC last week sets a benchmark for age discrimination cases going forward, says employment lawyer Emma Bartlett.

The BBC’s public apology and acceptance of the Employment Tribunal’s decision and desire to take Ms O’Reilly back is somewhat exceptional. Taking her back could mitigate the BBC’s potential liability for loss of future earnings, and aggravated damages claimed, flowing from the discrimination if she doesn’t join another channel.

Presumably the apology is to provide comfort to and/or an attempt to persuade other female presenters who might be waiting in the wings with age related claims that they don’t need to bring them – because the BBC will make amends.

Of course, diverting the bad publicity of the decision is always a benefit. The nature of the BBC, akin to a public authority, influences its response as its Charter is important in setting the tone of the organisation. If all employers offered up apologies or offers to look for alternative employment on receipt of an adverse decision from the Tribunal, appeal courts might soon be redundant.
 
Ms O’Reilly’s claim followed the BBC’s decision to change the presenters on its Countryfile programme after it moved to a prime time viewing slot. The BBC said that it wanted to “refresh and rejuvenate” the programme. It was legitimate for the BBC to want to make changes to appeal to a younger audience to fit with the viewing slot, but the Tribunal did not consider the removal of older presenters for ones 10-15 years younger was a proportionate means of doing so – pandering to a younger audience with younger presenters was not necessary.

Any claim for future loss could be very high given the difficulty older individuals have in seeking jobs in the media. The primary remedy available is compensation. It has been argued that if reinstatement was the primary remedy, there would be fewer claims, as the risk of reinstatement might cause employers to check their behaviour earlier and not risk damaging the relationship.

This case is not groundbreaking and turns on its facts, with careless discriminatory remarks and emails between co-workers trying to avoid being blamed for the decision, but it gives due warning to employers to observe non discriminatory practices.

The reported comments made by colleagues to Ms O’Reilly that “its time for Botox” and that she might not survive “the prime time test of being young and pretty enough” reflected the general concern as to the disadvantages that older women suffer in the media, but were not determinative of discrimination in relation to Ms O’Reilly. The comments made by Ms Jay Hunt, BBC1 Controller at the time, that there was an “under-representation of older women at the BBC”, identified a potential problem for the BBC.

Ms O’Reilly’s claim was for either age or sex discrimination or a combination of both as well as victimisation. The Employment Tribunal did not find that there had been sex discrimination, because it considered that had she been a man 10-15 years younger, the BBC would have been given proper consideration for her to remain on the program.  Her claim of combined sex and age discrimination therefore fell down, although technically, under the Equality Act 2010, “combined discrimination” as a stand alone claim is yet to come into force.

The necessity for combined discrimination claims may not arise given that Ms O’Reilly only needed one of her claims to succeed. Combined discrimination under the Equality Act requires discrimination based on a combination of two protected characteristics for example, age and sex. It is only intended to cover direct discrimination– not indirect discrimination, victimisation or harassment. Ms O’Reilly’s additional claim of victimisation requires an allegation of single strand discrimination in order to succeed.

A combined discrimination complaint would be complex, as demonstrated by Ms O’Reilly, due to the number of comparators required. The Tribunal in this case gave useful guidance on the appropriate comparator: A younger man with equivalent qualifications and experiences. Although neither age nor sex is the sole cause of the treatment, it does not in practice mean that direct age or direct sex discrimination cannot be established. Age or sex need only be an effective cause of the less favourable treatment, but not the only or even the main cause for a discrimination claim to succeed. The combined discrimination claim becomes irrelevant.

In Ms O’Reilly’s case, Ms Hunt said that she would never do anything to discriminate against someone on the basis of their gender or age, as she was a 43 year old woman who had had her own difficulties surviving in the media industry. However, it does not matter that discrimination was not intended. Neither does it matter that the alleged discriminator shares the same protected characteristics; their actions may still cause discrimination.

It remains to be seen whether the provisions in the Equality Act for combined discrimination will come into force in April 2011 or later. The question is whether the provision, as currently drafted, is necessary. Ms O’Reilly’s case has demonstrated that single strand discrimination can succeed even though the relevant protected characteristic, sex or age, was not the effective cause of the less favourable treatment or even the only or main cause of it.  Identifying the appropriate comparator is also key when faced with possibly more than one cause for the discrimination.

Perhaps of greater importance for employers though, is the looming repeal of the default retirement age. Employers will need to get used to justifying decisions to remove older employees as this case demonstrates.

Emma Bartlett is a Partner in the Employment team at Speechly Bircham LLP. Emma can be contacted on +44 (0)20 7427 6450 or on emma.bartlett@speechlys.com.