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Last year I wrote about Miriam O’Reilly’s successful age discrimination claim against the BBC when she was thrown off Countryfile.  Yesterday it was reported in The Guardian that she is going to leave Auntie and run a women’s support network and seek other challenges. The parting is being reported positively, with Ms O’Reilly not taking the opportunity to stick the boot into the BBC, as she might well be justified in doing.

Leslie Seldon

Age discrimination is a topical for employment lawyers at the moment because this week the Supreme Court is hearing the case of Seldon v Clarkson Wright & Jakes, another age discrimination case which will (hopefully) give guidelines on the circumstances in which it is permissible for an employer to require an employee or, in this case, a Partner in a law firm to retire.  Age discrimination is the only type of discrimination that can be justified.  The question therefore is: what is justifiable?  It is hoped that this judgment will provide some guidance on this thorny issue. More probable of course, as @ljanstis has predicted, is the outcome where it will all be said to depend on the facts in each case (with Lady Justice Hale strongly dissenting), leaving the situation just as unclear as it is at the moment.

Seldon should be finished today and the Judgment, which will be handed down in due course no doubt, will be keenly anticipated. To recap:  the Court of Appeal held that it was possible for a partnership to justify the compulsory retirement of an individual at a particular age if it can be shown that it is a proportionate means of achieving a legitimate aim.  In this case although it was held that forcing Mr Seldon to retire was directly discriminatory, it could be justified on the basis of it allowed associates to come through the ranks and achieve partner status, which also meant they wouldn’t leave to further their careers elsewhere, it facilitated succession planning and reduced the need to remove partners through performance measures.

The Court of Appeal dismissed Mr Seldon’s appeal. It’s an issue that goes to the heart of the age discrimination problem with strong arguments on both sides.  Which takes precedence: an employers’ right to manage its business and encourage new blood or throwing good people out just because they’ve passed a particular birthday?   Personally, I hope Mr Seldon wins because otherwise I can’t see how the age discrimination legislation can have any credibility.

Not that Homer

There is also another age discrimination claim being heard at the Supreme Court – on indirect age discrimination. Homer v West Yorkshire Police is about indirect age discrimination.  Following the introduction of a new career structure he was refused entry to the highest pay band because he did not have a law degree.  Mr Homer brought a claim for indirect age discrimination on the grounds that at 61 years of age he would be unable to gain a law degree before he retired, unlike younger applicants. Again, judgment is awaited.

You can watch the progress of these cases via the Supreme Court website and Sky “Supreme Court Live”, unless you’d prefer to watch the cricket on Sky, which I wouldn’t recommend as England are currently 68 – 4.  Whether the Judges will be as equally decisive remains to be seen.

Related posts:

1. Goodbye House of Lords, Hello Supreme Court
2. Redundancy and Age Discrimination
3. Bankers and Age Discrimination

Age Discrimination Cases At the Supreme Court originally appeared on Jobsworth by Michael Scutt on 19/01/2012.

I was pleased to see that Miriam O’Reilly won her age discrimination claim against the BBC.  At first glance, the fact that she was replaced by a younger man and woman whilst the veteran John Craven remained in place, didn’t look like the easiest of claims with which to succeed.

However, the fact that a BBC executive told her to “watch those wrinkles when HD comes in” and another told her it was “time for Botox” was pretty helpful ammunition for her.

The BBC also has a rather unsavoury history of dispensing with the services of older women; think Moira Stuart and, particularly Arlene Phillips who was booted off Strictly Come Dancing in favour of the undoubtedly more photogenic, but less knowledgeable, Alesha Dixon who was more than half her age.

In the Telegraph yesterday senior BBC executives are reported as being concerned that this ruling will lead to “casting decisions” being made in Employment Tribunals and the loss of “creative freedom” for broadcasters.

Nonsense.

Miriam O’Reilly was put out to pasture because she was clearly seen to be too old, which was dressed up as her not having sufficient recognition with the viewers.

If she had been put on screen at primetime she would soon have become recognised by the viewing public: how else do you get recognition?  Julia Bradbury and Matt Baker had to start somewhere in their careers.  What the BBC really meant was they thought the audience wouldn’t like an older woman fronting the show and because the BBC would claim to be giving us what we want the decision to sack her was therefore our fault.

Loss of creative freedom?  If Eastenders wants to write out a character to suit a plot line there is nothing in this decision to stop them.

The BBC, of whom I’m generally a big fan, needs to take a good look at itself and review how it makes these decisions.  But should we also look at ourselves?  Weren’t the BBC executives reflecting a more widely held prejudice against older people (particularly older women)? Comments welcome, as ever.

No related posts.

Miriam O’Reilly: The BBC Thinks We’re to Blame originally appeared on Jobsworth by Michael Scutt on 14/01/2011.

Are you a recruiter worried about what to write in a job advert?  Or concerned about inadvertently discriminating against applicants on the grounds of age?

It’s a difficult area and care needs to be taken.  However, some comfort can be taken from  a recent  case in the Employment Appeal Tribunal (“EAT”), which held that serial litigants may have to pay costs if they try to exploit the Age Discrimination Regulations for financial gain.

The case before the  EAT involved the same man who is alleged to have issued many cases against recruitment companies and employers alleging age discrimination in their job advertisements e.g “would suit school leaver” or “recent graduate”.  I have written about the issues concerning serial litigants before (see here, here and here).

In this most recent case Mr Justice Underhill gave a robust judgment in dismissing the Appellant’s appeal stating;

“We wish, however, to emphasise that the purpose of the Regulations is not to provide a source of income for persons who complain of arguably discriminatory advertisements for job vacancies which they have in fact no wish or intention to fill, and that those who try to exploit the Regulations for financial gain in such circumstances are liable, as happened to the claimant in the Investigo case, to find themselves facing a liability for costs.

It is about time that ETs started taking a stronger line on issuing costs orders against litigants, be they Claimants or Respondents, who try to exploit the system for reward. Not only is it wrong per se but it clogs up an already overcrowded ET system that hasn’t got time to hear the genuine disputes before it.

Thanks to @Anyapalmer for bringing this to my attention via Twitter

EAT says claimants who bring claims about ads for job in which they have no genuine interest may face costs orders: http://bit.ly/bUFJkx

12/11/2010 2:51 pm via webReplyRetweetFavorite

@AnyaPalmer

Anya Palmer

Related posts:

1. Age Discrimination – are the floodgates about to open?
2. Redundancy and Age Discrimination
3. Bankers and Age Discrimination

Can Recruiters Relax on Age Discrimination in Advertisements? originally appeared on Jobsworth by Michael Scutt on 15/11/2010.

Dumbledore - final salary pension scheme?

The Government announced last week that the Default Retirement Age is to finally be abolished from next year. This means that by October 2011 it will no longer be lawful for employers to demand that their employees retire at 65. The previous government announced it was going to review the issue last year  veryshortly before the final hearing in the Heyday saga (and did so probably to avoid losing the case and face).

It’s to be welcomed because people should be able to work beyond 65 if they wish. More to the point, with the increasing number of people living longer and most of us making inadequate provision for our retirement, as well as probably being saddled with mortgage and other debts beyond the conventional retirement debt, many of us will have no choice but to continue working. To that extent this isn’t a major liberalising move but a reflection on the fact that we’re in debt and not producing enough children to keep doing the work to raise the taxes. The default retirement age had to go.

The eternally useful magazine Personnel Today reported that the Government is claiming the move will actually save employers money – £45 million rising to £71 million per year apparently – mainly through there being fewer Tribunal claims from older employees claiming age discrimination. Personally, I’m not convinced by this mainly because it is the government’s estimate and they’re probably just trying to assuage employers. Secondly, claims for age discrimination will be replaced by older employees claiming unfair dismissal and age discrimination when the employer tries to terminate their employment on grounds of capability. On the other hand, HMRC will receive more tax revenues from continuing workers – £132 million per year apparently.

The current Age Discrimination rules apply the default retirement age of 65, but provide a procedure whereby those employees who wish to continue working can apply to do so. The employer doesn’t have to consent but, if they refuse the request they need to be able to justify the decision or end up facing a claim for age discrimination. From the proposals put forward now it seems that the employer will still be able to impose a compulsory retirement age but, again, will need to be able to justify it as a “proportionate means to achieve a legitimate end”. It will be a brave employer that does try to do so.

Dumbledore (above) needn’t worry – he’s probably got a Final Salary pension from the Ministry of Magic and, er, he doesn’t exist anyway.

No related posts.

Work ’til you drop originally appeared on Jobsworth by Michael Scutt on 06/08/2010.

There have been some interesting reported cases over the last couple of weeks on a broad range of topics.  For instance,

Legal Representation at Internal Disciplinary Hearings

In G v X School, a Court of Appeal case, it was held that a teaching assistant was entitled to legal representation at an internal disciplinary/grievance hearing in circumstances where that person’s right to practise in the profession was at risk.  In this particular case G was a teacher accused of sexual contact with a pupil at the school where he taught.  He was dismissed following investigation but was not allowed to have legal representation at the internal disciplinary hearing.  Subsequently the school reported him to the relevant regulatory body for consideration of whether he should be barred from working with children.   The case of Kulkarni v Milton Keynes General Hospital NHS Trust [2009] was followed and it was held that Article 6 of the ECHR required G to have legal representation because of the effect his dismissal would have on the decision of the ISA.  Note in both these cases they were against public authorities and the same result would not necessarily be the case if the employee was working in the private sector.  For example a banker facing a disciplinary hearing for an alleged offence of dishonesty would probably not be entitled to rely on this case even though his dismissal would be reported to the FSA and could lead to him losing his registration to practise.

Age Discrimination

The Employment Equality (Age) Regulations 2006 prohibit behaviour that subjects someone to less favourable treatment on the basis of a person’s age.  However, it can be permissible to discriminate against someone on the ground of their age if there is a “genuine occupational requirement”. The case of Wolf v Stadt Frankfurt Am Main heard before the European Court of Justice (ECJ) held that it was lawful for an upper age limit of 30 to be applied by the Federal state of Hesse in Germany on recruiting firemen.  However, in another German case before the ECJ, Petersen v Berufungsausschuss fuer Zahnaertze fuer den Bezirk Westfalen-Lippe it was not justifiable for a maximum age of 68 to be imposed on doctors and dentists practising in the state medical system where it was alleged that the rule was necessary to protect patients from a decline in performance as doctors and dentists got older: no such age limit existed in the private sector.   In other words, age limits on occupations can be imposed, but there will need to be a good reason for doing so.

Disability Discrimination

The definition of disability contained in the Disability Discrimination Regulations 1995 is a complex one and requires that the impairment be permanent or lasts for at least one year.  The case of Patel v Oldham MBC, heard before the Employment Appeal Tribunal (EAT) decided that when assessing whether the impairment will last for 12 months or more, it is necessary to consider whether another illness is likely to develop or has developed for the purpose of Schedule 1 paragraph 2 of the DDA.   In other words, if the secondary condition develops, or is likely to develop, from the original impairment it can be aggregated onto the original condition for the purpose of the section.  In other words, don’t just consider the original illness/injury but consider what secondary consequences there could be. 

 If you need advice on any of the above issues, or on anything to do with employment law, please contact me at Dale Langley & Co – 0207 464 8433 – or michaelscutt@dalelangley.co.uk

Related posts:

1. Case Round Up 20th November 2009
2. Case Round Up Friday 6th November 2009

Case Round Up 25th January 2010 originally appeared on Jobsworth by Michael Scutt on 25/01/2010.

Over on the Dale Langley & Co website I have written about the recently reported case of age discrimination by Achim Beck at his former employer, CIBC. Click here for the post.  The case was reported on Times Online on the 29th December.  Although Mr Beck has succeeded with his claim, the Employment Tribunal has not yet made an award of compensation and a “remedies hearing” for that purpose is awaited in due course, unless it settles beforehand.   I’ll keep an eye out for what could be a big award.

Related posts:

1. Race Discrimination and Redundancy
2. Can Recruiters Relax on Age Discrimination in Advertisements?
3. Age Discrimination Cases At the Supreme Court

Bankers and Age Discrimination originally appeared on Jobsworth by Michael Scutt on 13/01/2010.

Most people know that employers these days shouldn’t in job interviews ask women of child-bearing age when they intend to start a family.  Nor should they now ask potential employees how old they are.  The reason in both cases is that (a) it is usually going to be none of the employer’s business but, also, (b) it runs the risk of the applicant/employee later stating that the failure to appoint them was on discriminatory grounds. A report on the Personnel Today website from a few days ago questioned the wisdom of Cherwell District Council in asking employees to state whether they intended to retire in the next two or three years.  The Council is currently asking staff to work fewer hours or to work without pay to avoid the need for redundancies.  However, its request to staff to detail their plans and aspirations over the next two to three years could lead to them facing an age discrimination claim, suggests the article, if an employee could show that they were selected for redundancy because of their stated plan to seek retirement.  The same risk would apply if a woman stated she intended to start a family and was subsequently place “at risk”. 

The central difficulty in any such case is proving that the employer selected the employee for redundancy on discriminatory grounds.  I recently advised a client who was made redundant having advised his employer some months earlier that he intended to emigrate in a few years’ time.  He suspected that the employer therefore saw him as someone who wouldn’t be with the business long term and was this less likely to be as upset about having his employment terminated compared with someone who was, apparently, fully committed.  The employer, of course, denied that factor had played any part in their decision and the matter settled without Employment Tribunal proceedings.

Employers may see asking employees about their future plans as being a much easier way to select candidates for redundancy, but it is fraught with danger and may well embroil the employer in unwanted litigation if it took any action of any sort against the employee. Discrimination claims are not subject to the maximum cap on compensation that applies in unfair dismissal claims (and currently stands at £66,200). An employee who considers that their selection for redundancy was unfair can bring a claim for unfair dismissal (provided they have at least 12 months continuous employment experience of course) but that claim will be limited by the cap: not so with a claim based on discrimination as the reason for selection. Note to employers: just don’t do it.

Related posts:

1. Leaving your job? Three things not to do before you get your P45

Things employers shouldn't ask … originally appeared on Jobsworth by Michael Scutt on 02/09/2009.

Bob Ainsworth, the Defence Secretary, has come under fire for not only being a political lightweight out of his depth in one of the most important offices of state, but also for wearing a moustache (well, we are approaching the silly season).  An article at www.timesonline.co.uk/tol/life_and_style/men/article6709864.ece suggests that a moustache often signifies the wearer is homosexual or, of more importance to this blog, that it is a symbol of ”the constipated mentality of an inept, small-town jobsworth”, being the impression that Mr Ainsworth’s “facial furniture” gives to some.  I make no comment on that. 

Luke Leitch, the author of the article, also mentions notable other Jobsworths, including the bus-conductor Blakey from On the Buses  -  the inspiration for this blog.  I can just see him now saying “I hate you Butler” (or should that be “I hate you Mandelson”?)  Marvellous.

This Jobsworth doesn’t wear one by the way.  Mrs J wouldn’t hear of it.

On the subject of the family we’ve just come back from a relaxing family holiday (there’s a non sequitur for you) and I am still in holiday mode.  I was interested to read that the government wants to review the default retirement age of 65.  This announcement comes in the week that the Heyday challenge  makes its long circuitous route back to the High Court.  I doubt that we’ll get Judgment this week, of course, but at long last the end may be in sight. 

Whether the government’s decision to review the state retirement age has anything to do with them contemplating defeat in the High Court I couldn’t say but with increasing  numbers of pensioners to support in the next thirty plus years it makes sense to allow those who want to carry on working able to do so.  There is a mechanism in place at the moment where employees can ask to work on after the default retirement age but it is a bit of a palaver and, like many people, I cannot see how a default retirement age does not discriminate against older people.

More to come on this.

Related posts:

1. Will you be made to retire at 65?
2. Work ’til you drop
3. Heyday loses

Do Jobsworths wear moustaches? originally appeared on Jobsworth by Michael Scutt on 15/07/2009.

Over the last few weeks I’ve been writing about the various issues surrounding redundancy procedure and selection.  A couple of weeks ago an interesting High Court case was reported which dealt with the issues arising on redundancy where selection on the grounds of age became relevant.  The case in question was Rolls-Royce v Unite, and was unusual in that the employer was seeking to argue that its own selection criteria was age discriminatory and the Union was arguing that it was not. Normally, of course, one would expect the positions to be reversed.

In this case, Rolls Royce operated a selection criteria that gave points for various factors, such as skill and expertise, achievement of targets, contribution to the business, self-motivation and, particularly relevant for these purposes, length of service. Those with fewest points overall were selected for redundancy. The effect of the length of service factor meant that workers with long service would gain more points and thus be less likely to be selected for redundancy than workers with shorter service who were more likely, therefore, to be younger.  Rolls Royce argued that this policy was indirectly discriminatory because it favoured older workers. 

The Court disagreed and held that such a policy could be justified by the employer (justification for a policy that is otherwise discriminatory being a defence under Age Discrimination legislation) on the grounds that the policy fulfilled a “business aim”, namely it was a contractual benefit rewarded employees loyalty and also that older workers would find it harder to obtain alternative employment upon redundancy.  The scheme was also found to be a means of enabling redundancies in the workforce to be handled “peaceably”. 

What does this case mean for employees and employers?  For businesses it is a double-edged sword because although on the one hand they may be relieved to know that the application if such a selection policy will not land them with claims for age discrimination, it also means that the flexibility they seek in selecting candidates for redundancy is reduced.  Remember, in this case it was Rolls Royce that sought to argue its own policy was discriminatory. The case is also good news for older employees with long service and less good for those with shorter.

 This article will appear in the “Docklands” and “Peninsula” newspapers week commencing 1st December.

Related posts:

1. Rolls Royce v Unite: an update
2. Race Discrimination and Redundancy
3. Redundancy – know your rights!

Redundancy and Age Discrimination originally appeared on Jobsworth by Michael Scutt on 28/11/2008.