Miriam O’Reilly v the BBC

Ok, this post is so ludicrously late you’ll probably have no idea what it’s about anymore.  But I’ve invested so much (metaphorical) blood, sweat and tears in it over the last week that I’ll be buggered if I’m not going to post it now I’ve finally got it done.

In case you’re not up to speed (or were up to speed, but have since forgotten…), the facts of the Miriam O’Reilly situation, briefly:

  • Miriam O’Reilly was a presenter on the BBC programme Countryfile.
  • She was dropped from the presentation team – along with other colleagues, three of them women aged over 40 – when the show moved from Sunday morning to Sunday evening.
  • The BBC had suggested that these presenters were ‘let go’ because they weren’t famous enough to work on primetime.  By implication, the fact that a number of them were older women, and their replacements visibly younger, was merely a coincidence.
  • Last Tuesday an employment tribunal found in favour of Ms O’Reilly’s assertion that she had instead been the victim of age discrimination.
  • A significant reason for this was that the BBC were unable to produce any evidence demonstrating that presenters had been considered on the basis of their public profile, and some younger presenters hired to work on the primetime show were less famous than Ms O’Reilly and her colleagues.  The ‘primetime experience’ argument seems to have been developed by a BBC press officer after accusations of ageism had begun to circulate, and in an attempt to counter them.
  • The BBC have accepted the judgement, acknowledged that they ‘got it wrong in this case’, and announced that they will take steps to make sure they don’t continue to get it wrong.  In addition, they’ve apologised publicly and (by their own account) in person to Ms O’Reilly, and have indicated that they would like to have discussions with her about working for the BBC in the future.  Insofar as an employment tribunal can have a wholly positive outcome, this is it.

Some things that occur to me about all this, not necessarily in order of importance.

The claim that a primetime show can only be presented by someone with primetime experience is so stupid as to make me want to bang my head against the desk.  By this logic, there wouldn’t be any primetime presenters.  There couldn’t be.  If the only way to qualify for a presenting gig on primetime TV is to have experience presenting on primetime TV that means you can’t get experience without having experience, which means no-one can qualify, and that, as a result, there are no presenters on primetime TV.  Except, of course, there are, which means it’s instantly apparent to everyone that the criterion for getting a job presenting on primetime must be something else.  The idea that the BBC thought a defence this stupid could prevail is positively mind-blowing.

The BBC attempted another defence which is not so much stupid as it is infuriating.  It’s referred to in paragraph 244 of the full judgement (and preceding and succeeding paragraphs, if you want the full story), and I had to read it several times, because I was initially convinced that the BBC wouldn’t endorse a tactic so…so…well, at the risk of sounding melodramatic, so wicked.

Their counsel at the tribunal, Mr J Galbraith-Martin, freely accepted that a policy not to employ anyone over the age of 40 would violate the regulations against age discrimination, and that a policy not to employ women would violate the regulations against sex discrimination.  However, he argued that a policy not to employ women over the age of 40 didn’t violate the age regulations (because men above that age were still eligible for employment), and didn’t violate the sex regulations (because younger women were still eligible for employment), and as such any policy of this type wasn’t against the rules.  Luckily the Tribunal took the view that both sets of regulations exist to protect specific individuals against unfair treatment, not abstract social groups, and that any individual affected by such a policy would have potential grounds for complaint under both sets of regulations.

Miriam O'Reilly

I do realise that, in an adversarial system (and Employment Tribunals are still fundamentally adversarial, though they’re supposed to proceed by agreement wherever possible), a legal representative has a duty to put forward any argument that may advance his or her client’s case.  I also realise that this is the means by which the scope and meaning of law is defined, and that the decision made by the Tribunal in this case will now be helpful to future complainants as precedent has been established.  I’m afraid none of this changes the fact that I am extremely disappointed in the BBC for allowing their counsel to pursue this avenue.

It’s an argument over technicalities, and one that, if had been allowed, would be a clear breach of the spirit of the regulations.  If the BBC and their counsel were reduced to proposing arguments like this (which the Tribunal judgement itself describes as ‘highly surprising’) it tends to suggest they were aware their main defence was unlikely to succeed, something that seems to be borne out by the report in The Guardian that they had attempted to settle with Ms O’Reilly before the case came before the Tribunal, presumably on a no-liability basis.   It angers me that the BBC would continue to defend a discrimination complaint even though they had apparently already conceded they were very likely to be in the wrong.  In doing so they were acting like the worst employers, organisations that are not concerned with right or wrong, but simply with what they can get away with – such as arguing that a policy to dismiss older women from employment is neither ageist nor sexist.  To my mind, it does not become the BBC – a public body with loudly-proclaimed noble aims and principles – to behave in this way.

Something else that annoyed me was the coverage of the issue on last Tuesday’s Newsnight.  The report was fairly unexceptionable, though the decision to travel to the house shared by Richard Madeley and Judy Finnegan to get an interview from someone arguing the case for older female TV presenters, and then to interview Madeley rather than Finnegan, did strike me as a little odd.  What irritated me was the discussion afterwards (begins at approximately 23 minutes), which was between Lorraine Heggessy, a former controller of BBC1, Rosie Millard, formerly an arts correspondent for BBC news, and Esther Rantzen, a veteran presenter whose work on TV seems to have declined as she has aged.  The panel was a little unbalanced, in that Heggessy and Millard both spoke against the idea that older women are unfairly excluded from our TV screens, leaving Rantzen as the sole opposing voice.  This was unfortunate, as, perhaps, was the decision to use a discussion format rather than one-on-one interviews; the latter decision meant that both Heggessy and Millard were able to put forward highly questionable (even outright insulting) arguments without having them effectively challenged.  (Rantzen did her best, but she had only limited opportunities to speak, and was trying to put forward a positive case, rather than simply refute what the others were saying.)

So, what were these questionable arguments?  Well, there were so many I can’t possibly cover them all, but for example, at one point Heggessy announced, as though it was the clinching point, that ‘no-one is asking the question whether Miriam was good enough to present on primetime’ (or words something to that effect – I’m paraphrasing from memory – check out the programme link for her exact words).  Setting aside the unpleasantness of directly attacking a woman who wasn’t present to defend herself, this is inaccurate.  If Heggessy had read the Tribunal’s judgement (something which I would have thought she might have done, given that she was appearing on TV to discuss it), then she’d see that this was, in fact, one of the questions that the Tribunal addressed.  They did so by looking at private emails (that is, emails about O’Reilly, but not addressed or copied to her) which indicated that she was very highly thought of by her senior colleagues – so highly thought of, in fact, that there was evidence of disputes between the producers of Countryfile and a Radio 4 programme over which programme should benefit from the lion’s share of her time.

It’s absolutely standard, of course, for employers brought before an Employment Tribunal to argue that the complainant wasn’t unfairly treated, that whatever they’re complaining about was fully justified, and that they’re only claiming unfair treatment because of sour grapes.  It’s also absolutely standard, therefore, for tribunals to have to reach an opinion on someone’s professional ability, even if they are not themselves experts in the field, and to do so by examining the evidence presented to them.  Heggessy’s thinly-veiled assertion that the tribunal didn’t know what they were talking about because TV is some kind of ‘special case’ is another standard response.

Lorraine Heggessy

Every employer brought before an Employment Tribunal thinks they’re an exception, and that equality rules shouldn’t apply to them.  Some employers think they’re justified in firing employees who age, or cease to be judged attractive for some other reason, because having young, attractive people as the ‘face’ of their company is essential for their ‘corporate image’.  Some employers have argued that ‘their clients expect’ to be taken to lap-dancing clubs as part of contract negotiations, and that as such it’s reasonable for them to insist that female employees attend such places as part of their job.  Heggessy’s (and, from a different angle, Millard’s) point – that the near-total exclusion of older women from television is purely a result of ‘giving viewers what they want’ – is no defence.  The company that expects female employees to attend lap-dancing clubs is ‘only giving the customers what they want’: the company that insists its employees are young and attractive is ‘only giving the customers what they want’; the central issue is not what the customers want, but what is fair to employees.  That’s the whole point of equality legislation – that a person shouldn’t suffer unfair treatment because of something that doesn’t affect their job performance.  Arguing that the unfair treatment results from what customers (or viewers) want is no defence against the fact that unfair treatment has taken place.

This is a point made very effectively in paragraph 291 of the tribunal judgement:

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 prejudices of some younger viewers.

I’d particular endorse the reference to ‘assumed prejudices’; it strikes me as a fairly direct insult to the BBC’s audiences to suggest that our only (or major) criterion for watching a show is whether we find the presenter attractive.  It seems like this is an idea that may have some currency in TV circles, however.  At one point Rosie Millard suggested that we are all ‘hard-wired’ to find post-menopausal women unattractive, in a way that we’re not with older men, and that, by implication, there’s no use complaining about the effects that has.  This seems to be an argument derived from evolutionary psychology – that all assessments of people are at heart assessments of their reproductive value, and that women’s reproductive value is judged on exclusively biological factors while men’s reproductive value can be positively influenced by material success or social prestige.

Rosie Millard

Like all arguments derived from evolutionary psychology (or, at any rate, a facile understanding thereof), I find this fairly unpersuasive.  For example, in evolutionary timescales human beings are predominantly tribal creatures, and a child would obtain access to food and shelter, not through having a powerful father, but through the mother’s membership in the tribe.  In other words, if we find older women more unattractive than older men (and that’s a big if; it’s not exactly PC, but what about the whole MILF phenomenon?), then that’s the result of cultural and social factors which are subject to change, not evolutionary preferences ‘hard-wired’ into our genes.  It’s also worth keeping in mind that our current longevity is, in evolutionary terms, highly unusual; for the bulk of our history as a species, average life expectancies would have meant that most women died before reaching the menopause.  Like men, they’d have been sexually viable for the whole of their adult lives, though, like men, their fertility would have declined as they aged.  If this presumed distaste for age really is evolutionarily driven, then nubile men should be as readily preferred as nubile women.

Even if we set aside all of that, though, I really can’t accept that preferences for TV shows are based on how sexually attractive we find the presenters.  If that were the case, the only men who watched Top Gear would be those who were attracted to Jeremy Clarkson.  As it is, I suspect that the bulk of men who watch the show are radiantly heterosexual, and think of Clarkson as a kind of virtual bloke-down-the-pub (just as those of us who dislike him think of him as the world’s most high-profile pub bore).  It strikes me that, if we’re going to go down the road of modelling relationships between TV presenters and viewers on real-world relationships, then TV presenters can fit into the role of mother, father, brother, sister, friend or teacher just as easily as they can sexual partner.  If that’s the case, then the idea that a TV presenter has to be attractive seems ridiculous.  Most people, I’m sure, would say they get something they value from their relationships with friends and family, that they find time spent in their company pleasurable; I’m sure most would also say that they don’t find those people sexually attractive.

Jeremy Clarkson: an object of sexual desire for heterosexual men?

Certainly, that way of thinking about TV presenters makes the most sense to me.  It strikes me I can find someone funny, clever, interesting, informative, and so on, without having my libido engaged.  If I can find something of value in real-world people who don’t turn me on, why on earth can I not do the same with the people on TV?  I’m pretty sure I can, and that everyone can, and the idea that older women aren’t wanted on TV is simply a vicious cycle – audiences don’t see older women on TV, so they don’t expect to see them, so there’s no demand for them, so TV executives assume the lack of demand is evidence of a distaste for older women and therefore don’t allow them on TV, so audiences don’t see older women on TV… and so on.  I’m really glad that, between them, Miriam O’Reilly and the Employment Tribunal might finally have done something to disrupt the operation of a system of thought that denies older women fair opportunities on TV, and denies viewers of all the ages the benefit of their skills and abilities.

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4 Responses to Miriam O’Reilly v the BBC

  1. I totally agree with your comments about how the BBC are insulting to think we only want to watch attractive people on TV! I thought exactly the same. I can just about understand ITV making that argument, but the beeb? ;)

    Interesting post. It was worth the delay!

  2. aethelreadtheunread says:

    Hi, intothesystem, and thanks for the comment. :o)

  3. mm says:

    Congratulations. One of the best summaries of this case that I have read.

  4. aethelreadtheunread says:

    Hi, mm, and thanks. :o)

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