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Carly Mathers

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Age discrimination in the media: Strictly unlawful?


The BBC has faced considerable criticism recently following allegations of age and sex discrimination, particularly in relation to Radio One and the popular television series, Strictly Come Dancing. Carly Mathers explains.



There have been some recent allegations of age and sex discrimination at the BBC, the most prominent of which stem from BBC Radio One’s recent ‘reshuffle,’ which essentially involved a number of older, female broadcasters being moved from their high-profile weekday slots to less prominent weekend shows. In particular, mother-of-four Jo Whiley, aged 44, has been removed from her lunchtime, weekday slot to make way for 27-year-old Fearne Cotton (pictured above); and Edith Bowman, aged 35, who recently had a child, will also lose her weekday slot in favour of 23-year-old Greg James.
Radio One maintains that the re-organisation was needed in order to ensure that it continues "to change to connect with a new generation of audiences." The BBC hopes that this can be achieved by "promoting three of [their] up-and-coming broadcasters into the heart of the schedule." The shake up took place after it was revealed that the station had ‘breached its remit’ by having an average listener age of 33. The station should allegedly be targeting 15 to 29-year-olds.
Despite these justifications, Radio One is still facing widespread criticism for the alleged marginalisation of older, more experienced broadcasters.
In a similar vein, the BBC has faced notable disparagement owing to speculation that it is guilty of unlawful age discrimination in the context of its widely acclaimed televisions series, Strictly Come Dancing. The allegations arose from the recent decision to replace Arlene Philips (aged 66) with 2007 series winner Alesha Dixon (aged 30) and dancer Darcey Bussell (aged 40). Ms Philips is said to be joining a slot on The One Show, as the show’s Strictly Come Dancing expert, something which many will consider to be a demotion.

The BBC’s response

In denying the allegations the BBC confirmed that the age range of the contestants on Strictly Come Dancing provides clear evidence that age played no part in the decision to replace Ms Philips. However, it recently transpired that the oldest female dancer, Karen Hardy (aged 39), will also be replaced with a 25-year-old dancer.
The BBC went on to explain that it was necessary to "refresh" the Strictly brand and there had simply been a desire to "change the flavour of the panel". However, interestingly the BBC have decided not to replace any of the three male judges, aged 44, 53 and 65, and each have kept their place on the panel for the next series.

The legislation

The issue of age discrimination in the media was raised by the equality minister, Harriet Harman, during recent questions in the House of Commons. She stated boldly that she thought the decision to replace Ms Philips was "absolutely shocking". She stated that, as equality minister, she was suspicious that the decision amounted to age discrimination. 
These examples highlight the difficulty of disentangling sex and age discrimination claims and this is currently being addressed in the new Equality Bill. The current legislation can make it difficult for claimants to successfully bring claims under different heads of discrimination if the specific requirements for different types of discrimination cannot be met.
A proposed dual discrimination clause is being mooted which is aimed at protecting those who are subjected to discrimination arising from a combination of protected characteristics, for example, age and sex. This should have the effect of making it easier to establish discrimination by avoiding the requirement for all alleged acts of discriminatory behaviour to be attributable to one type of discrimination.
It is hoped that protection for multiple discrimination will be implemented by 2011. The proposals would essentially involve changes in discrimination legislation to enable multiple discrimination claims to be made in relation to direct discrimination only, combining no more than two of the following protected characteristics:
  • Age
  • Disability
  • Gender reassignment
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

Can the BBC justify their actions?

Direct and indirect age discrimination can be justified by showing that the treatment was a proportionate means of achieving a legitimate business aim. In addition, the means adopted in achieving that aim must be proportionate and necessary having regard to the specific circumstances of the case. 
If any age discrimination claims are brought against the BBC, the prospective claimants will have to show that they were treated less favourably on the grounds of their age. The less favourable treatment will undoubtedly be their replacement by younger colleagues.
If they can then establish that, the BBC will then have to show that the decisions made to replace older employees with younger, less experienced individuals resulted from a legitimate business aim and that the demotions were a proportionate way of achieving this aim. 
The Employment Equality (Age) Regulations 2006 contain specific provisions for justification of discriminatory treatment on the grounds of age if it can be shown that there is a genuine occupational requirement for a lower age group, which provides that having regard to the nature of the employment or the context in which it is carried out, it is necessary for employees to be of a specific age range. However, given the ages of the male presenters and broadcasters on these shows, it would be very difficult to argue that there is a requirement for media work to be undertaken by younger individuals.
There has certainly been an increase recently in the number of high profile discrimination claims being pursued in the media. In 2008 presenter Selina Scott, aged 57, brought a claim for age discrimination against Channel Five arising from the channel allegedly reneging on an offer of employment that she believed had been withdrawn on the grounds of her age. The case was ultimately settled, however it will be interesting to see how organisations in the media will seek to justify less favourable treatment, (if ultimately that is identified), which to many appears to be solely on the grounds of age in order to attract younger audiences.  
Carly Mathers is a solicitor at Davies Arnold Cooper LLP

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