Women at the Top Blog

Old too soon and wise too late – Benjamin Franklin’s aphorism has never seemed so apt.

Having appeared on Newsnight, the BBC’s evening news programme, as an expert employment lawyer to discuss the Miriam O’Reilly ruling (which saw the former presenter of the BBC’s Countryfile, a rural and environmental affairs programme, win a claim of ageism and victimisation against her former employer), Bettina Bender’s day job is as partner with CM Murray, the employment law specialist. Earlier today I interviewed her about recent events in the UK that may affect older women in the workplace.

Will O’Reilly’s partially successful case against the BBC (her claim of sex discrimination was dismissed) have an impact on employment practice in general?

Bettina Bender: While there is nothing new in terms of case law, it will undoubtedly alert women to the possibility of bringing cases of ageism against employers. Given that under English law unfair dismissal claims are capped at a maximum of £60,000 ($95,000), the compensation for a case of ageism (as sexism) is unlimited. There is huge potential for women to rely on ageism if they are replaced by a younger man or woman.

Have there been many cases since age discrimination became law in 2006?

BB: Actually, no. Most female employees we represent at CM Murray are fighting being sidelined as they return from maternity leave – so typically are in the 35-to-45-year bracket – or are bringing a case over pay differences with their male colleagues. However, this is perhaps a reflection of the low number of women in senior roles at either partner or board level. As their numbers increase, we will see more ageism claims from both women and men.

Will the floodgates open?

BB: I suspect not – simply because you have to accept that once you bring a claim, your career is over. No one will want to employ you again. You are forever marked out as a troublemaker. So for a woman in her early 50s, it is quite a disincentive, given that she may have 12 or more years of her career ahead. Because of the uncapped compensation allowed, when making an unfair dismissal claim you should always consider whether ageism or sexism forms part of the equation.

CM Murray also represents employers. What should they look out for?

BB: There is no problem with an employer citing age as a factor, as long as it has a valid business case. The BBC claimed it was looking for a younger audience for Countryfile as it had changed [when the programme was broadcast], but Countryfile’s new time slot still attracted viewers in their mid-50s, so it just didn’t wash as a business case.

What about the new legislation regarding retirement?

BB: While the underlying aims of the legislation are understandable – namely that pension schemes simply can’t afford to pay people to retire at 65 ­– this creates huge uncertainty and difficulty for employers. Now, if an employee’s performance begins to tail off at, say, 67, the employer must follow performance reviews and proper dismissal procedures rather than allowing a dignified exit via retirement. While larger companies’ HR departments will be able to cope with ensuring proper procedures are followed, smaller companies without those resources may struggle. It will be possible, in theory, for a man or woman of 65 to bring a claim of ageism and claim, for example, for five years’ loss of earnings. With the government wanting the private sector to pick up the slack caused by public sector redundancies, this change introduces more red tape for employers that may be off-putting.

What would you advise employers to do?

BB: The most important advice is to ensure performance issues are tackled in a timely and open way. Don’t rely on a vague e-mail, but ensure there is a formal meeting, properly documented and recorded on the employee’s personnel file. It is also important, when making redundancies, not to  target older staff specifically, since this may make you vulnerable.