This raised the question: why haven't more older women presenters have not taken action? And are there any obstacles in their way to doing so?
It has been unlawful for employers to discriminate on the grounds of age since 2006. An employer is guilty of age discrimination if it treats an employee less favourably because of age compared with others who are not of the same age or age range. The current debate appears to be based on the notion that viewers do not want to see older female presenters.
This stereotypical assumption about the popularity of older women on TV is likely to amount to less favourable treatment on the grounds of age as women presenters find themselves overlooked for opportunities or moved aside (as in Miriam O'Reilly's case). This decline in opportunities and new projects becomes self-fulfilling as they are on television less and so see their ratings decline.
To make out a claim of age discrimination the treatment complained of has to be less favourable compared with the treatment of an individual of a different age (in this case younger). It can be a hypothetical comparator although with younger presenters replacing an older woman directly finding a comparator should not be too difficult.
The key to any complaint of discrimination is going to be 'why was the individual treated in this way?' It is rare that an employer would be blatant about the reason for the treatment and so provided the employee can set out sufficient facts that require an adequate explanation, the burden shifts to the employer to provide that explanation. The onus is initially on the individual to show potentially less favourable treatment than a suitable comparator. Having established this, the onus switches to the employer to provide an adequate (non-discriminatory) reason for the difference in treatment.
Employers have a defence to charges of age discrimination if they can show that the difference in treatment is a 'proportionate means of achieving a legitimate aim' (or objectively justified). Those aims must be employment related and of a public interest nature rather than reasons particular to the employer's situation.
The popularity of older female presenters is likely to be a key part of any argument in defence of their treatment. Applying stereotypical assumptions to all older presenters will be discriminatory, but broadcasters may seek to argue that particular individuals have lost their appeal with the audience.
The defence is that they are simply giving the public what they want. This then leads to the question of whether the broadcasters can defend their treatment of women presenters in this way. If they were told by a sponsor, for example, to remove a women presenter as she was perceived as too old and they did not want her associated with their product the broadcaster could be held liable for this act of discrimination. This raises the question of whether they should be held liable for pandering to the public's tastes, which in turn leads on to the wider issue of whether the population as a whole is prejudiced against older women.
Howard Lewis-Nunn (pictured) is a partner with the employment team at Ashfords Solicitors
