The Equality Law Reports, published by Michael Rubenstein Publishing, was launched in October 2010 to coincide with the new employment provisions in the Equality Act 2010. The People Bulletin has arranged with Michael Rubenstein to make selections from the Employment Tribunal summaries along with copies of their judgments available from time to time. A free sample issue of EqLR is available here
Age discrimination
O’Reilly v British Broadcasting Corporation
London Central Employment Tribunal (Employment Judge J Tayler; Lady A Sedley, J Carroll)
For the claimant: Heather Williams QC and Amanda Hart, counsel
For the respondents: Jason Galbraith-Marten, counsel11 January 2011, 55pp
Miriam O’Reilly, an award-winning presenter on the Countryfile programme, was replaced when the programme was moved from a daytime slot on Sunday to a primetime evening slot. She was aged 51 at the time. She was one of four female presenters, who were aged from mid-40s to early-50s, all of whom were replaced by a line-up consisting of two main presenters (Julia Bradbury and Matt Baker), aged 38 and 30, supported by three “second-tier presenters” aged 26, 36 and 38. John Craven, then aged 68, was retained.
Ms O’Reilly brought claims of age and sex discrimination against the BBC. The BBC claimed that the decision was based on criteria that the presenters required a network profile that would make them familiar to peak-time audiences, an ability to present shows in an immersive manner and a knowledge of rural affairs. However, the employment tribunal noted that there was no record of the assessment of the presenters against the criteria. Instead, the then-controller of BBC1, Jay Hunt, and the head of rural affairs, Andrew Thorman, “offered the complacent explanation that this is just the way things are done in the media world”. On considering the evidence, the employment tribunal said “we do not accept that criteria were devised and adopted as suggested bythe respondent.” The tribunal said that the key to what happened was that the BBC wished to establish “diversity” in its presenters. They were looking for younger presenters from ethnic minorities. The method they chose was unlawful: “By filling particular slots with people chosen to represent particular groups so that there is, at least, a degree of diversity, but without equality of opportunity.” The tribunal noted that the BBC first looked for “ethnic talent” and later made a trawl for “female” presenters. The tribunal commented that “one of the risks of this slot-filling approach is that it may not only involve unlawful positive discrimination; but may disadvantage particular groups who are not, on a particular occasion, considered to be important in creating apparent diversity.”
The tribunal found that Mr Thorman came away from his discussions and meeting with Ms Hunt with the clear understanding that he was to look for new ethnically diverse younger talent to replace the claimant and the other women as second-tier presenters, which would refresh and rejuvenate the programme. The tribunal concluded that “a significant factor in their choice was their comparative youth; and in the decision not to consider the claimant, her age.” “The discrimination was not justified. The wish to appeal to a primetime audience, including younger viewers, is a legitimate aim. However, we do not accept that it has been established that choosing younger presenters is required to appeal to such an audience. It is not a means of achieving that aim. Even if it was a means of achieving that aim, it would not be proportionate to do away with older presenters simply to pander to the assumed prejudice of some younger viewers.”
The tribunal found, however, that the claimant’s gender was not a factor, either alone or in combination with age. Various sexist comments made to the claimant were not made by those who had responsibility for the decisions taken about the presenters on Countryfile. The tribunal concluded that Ms O’Reilly would not have been retained had she been a man of the same age and skill set, because “the element of comparative youth required for the second-tier presenters would have been missing.”
http://tinyurl.com/oreilly1101
Race discrimination
Saddiq v B&Q Plc
Reading Employment Tribunal (Employment Judge Hill;J Williams, P Miller)
For the claimant: In person
For the respondents: T Cordrey, counsel
26 October 2010, 22pp
Mr Saddiq worked as a security guard at the B&Q store in Reading. He was employed by VSH, who have a nationwide contract to provide security services for B&Q. He brought a claim under the contract worker provisions of the Race Relations Act, alleging that he had been the subject of both direct race discrimination and harassment on the grounds of his race, both by B&Q and by two of its named employees. The employment tribunal found that Mr Saddiq had drawn to the attention of B&Q’s head office that there was a potential theft in the store, involving Stella Bright, a trade expert at the store. As a result of this, Mrs Bright brought an unfounded grievance against Mr Saddiq. The tribunal found that she also made a racially offensive remark to Mr Saddiq, calling him an “ugly Paki”. The remark was overheard by a customer, but B&Q failed to investigate the allegation in an appropriate manner and dismissed the grievance. This led the tribunal to conclude that B&Q had treated the claimant less favourably on the grounds of his race. It also held that Mrs Bright treated the claimant less favourably on the grounds of his race by making the remark, and had subjected him to racial harassment. The tribunal criticised B&Q’s grievance-handling procedures. It also commented: “We have no idea whether there is any diversity procedure or policy, no idea what training any employee receives (if the management team have had any training on employment issues we do not consider it has been very effective). We also noted that consistently the attitude of senior managers ... was to bury their heads in the sand and not tackle the problem.”
http://tinyurl.com/saddiq1101