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The Legal Eagle: I’ll see your Wogan and I’ll raise you a Humperdinck

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In light of the recent debate around boardroom quotas for women, employment lawyer at Westminster firm Bircham Dyson Bell, Kevin Poulter, asks can gender discrimination ever be justified?

News that Englebert Humperdinck is to represent the UK at the Eurovision Song Contest in Azerbaijan on 26 May 2012 has set ripples right to the heart of Steps fans worldwide.  

Humperdinck will be either the choice of genius or the biggest disaster since the reformation of Scooch.

It would appear that another great British institution, the BBC, is responsible for the selection of the songwriter and act which, together, represent our proud nation at the world’s foremost camp singathon. 

Incredibly, the contest is now in its 56th year and remains Europe’s favourite TV show. But is the choice of grandma’s favourite such an odd choice from a BBC which celebrates the elder statesman but not, it seems, the older stateswoman?

The BBC has received a lot of bad press in recent months, due in part to its imminent move to Salford’s media city, but mainly due to its treatment of its older female presenters and stars.  The verdict of the London Central Employment Tribunal last year that the BBC discriminated against former Countryfile stalwart Miriam O’Reilly surprised many. 

Unfortunately, there were a lot of women of a similar age who were not so surprised, both from within the Corporation and in business generally. 

“That Sir Bruce Forsyth is still on prime time Saturday night TV is just one example of many older men still flattered to be at the top of their game – certainly where presentation to the prime time public is concerned”

Despite the claim dating back to a selection process that took place in 2009, when the staple of the Sunday lunchtime schedules moved to a prime time spot and saw Miriam and three other female hosts axed from the new line-up, Ms O’Reilly’s more recent departure from the BBC was to “work on other projects”.

At the time of the judgement, which found that the presenter had been victimised and discriminated against on the grounds of her age, much was made of a change in policy at the BBC. 

The barrister who represented Ms O’Reilly, Heather Williams QC, commented that there was a “notable disparity” in the way that “physical appearance is an issue for women in a way that it is not for men” and that “In prime time, it is much more common to see men who are wrinkled or overweight or who in one way or other could not be described as physically attractive.”

But has anything changed?

The fact that Sir Bruce Forsyth is still on prime time Saturday night TV is just one example of many older men still flattered to be at the top of their game – certainly where presentation to the prime time public is concerned. David Attenborough, Alan Titchmarsh, David Jason and Terry Wogan are just a few more elder statesmen still featuring on our best loved TV and radio shows.

“The only way to defend direct discrimination based on age, sex, race, religion or any of the other characteristics protected by the Equality Act 2010 is where there is a genuine occupational requirement justification”

However, is the well known social commentator, Rowan Atkinson, right to take time out from his slapstick escapades and throw support behind the ‘creative freedoms’ the BBC should be allowed to enjoy? 

His suggestion that entertainment providers should be released from the binds and responsibilities of pesky equality and discrimination laws is controversial. 

Can it be true that older women are a ratings loser? And should it make any difference to equality laws in the workplace? 

The only way to defend direct discrimination based on age, sex, race, religion or any of the other characteristics protected by the Equality Act 2010 is where there is a genuine occupational requirement justification. 

Typical examples include the need for authenticity in a particular acting role or a particular sex in a situation that requires privacy or discretion. 

It is doubtful that an audience’s reaction to a particular presenter would, in these circumstances, be sufficient to justify such discrimination – particularly where the employer is a public service broadcaster.

There may well be some justification in, say, youth television presenters being closer to their target market. The same can be said of radio or any other media. But is it fair? It was announced last week that 38 year old Edith Bowman is to be replaced on Radio 1 by Gemma Cairney, 12 years her junior. Yet still holding his head high as the alleged saviour of the channel is Chris Moyles, also 38, but a man.

Things may be looking up though. Miriam O’Reilly has gone on to found the Women’s Equality Network, a charity to provide “peer to peer support for women facing discrimination in the workplace”. With a groundswell of support behind her and a promised rethink at the heart of the Corporation, maybe soon we will see a fairer, more equal representation in our prime time hosts.

Kevin has been an employment lawyer for just over 10 years. Having qualified in Yorkshire, he is now an Associate with London firm Bircham Dyson Bell. He specialises in advising commercial clients on all manner of employment and human resourcing issues, specialising in workplace relations, restructuring, business transfers and discrimination.

 




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