14-minute read
Dermot Feenan
LLB MA LLM Barrister-at-Law FRSA
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On 30 January 2023 BBC News published a piece ‘Over-50s at work: “You feel your usefulness has passed”’ which failed to acknowledge or address apparent discrimination against its lead source, Michael O’Reilly, despite statements which suggest that he had been treated less favourably because of his age in the recruitment stage for employment. In this essay, I set out and discuss several reasons why this failure is a problem.
Written by two of the BBC’s business reporters, Noor Nanji and Will Harris, the piece led with a quote from Mr O’Reilly about the difficulty he had encountered in his 50s in finding work.
O’Reilly, is also quoted regarding his experience in job interviews: “the initial conversation is fine, but when you do video calls or face-to-face interviews the dynamics change. You can tell by their manner and their body language, they’re not really paying attention to you.”
He is quoted saying: ‘It’s horrible […] You feel your usefulness has passed.’ Part of that quote features in the title of the piece.
The journalists cited research from the Chartered Management Institute (CMI) which, they wrote, ‘suggests firms are less open to hiring older workers than they are to bringing in younger people.’
So, why is the failure to name and address discrimination a problem?
Age discrimination is against the law
Firstly, age discrimination is against the law in the United Kingdom. It has been since 2006.
Age is one of the nine ‘protected characteristics’ in the Equality Act 2010 (s. 4). It’s unlawful under the Act to engage in direct or indirect discrimination, harassment or victimisation on the basis of age.
It was unlawful under preceding legislation in Britain, the Employment Equality (Age) Regulations 2006.
So, that law has existed for 16 years.
Failure to identify discrimination
Secondly, Mr O’Reilly’s account suggests direct discrimination.
In addition to the two quotes above, Mr O’Reilly is also quoted saying that he “can’t find [a job] because companies don’t want people his age.”
This, too, suggests age discrimination. Nanji and Harris do not name Mr O’Reilly’s experience as one of discrimination or potential discrimination nor do they identify the implications of such naming.
Public sector equality duty
Thirdly, public authorities (including those that recruit) are also subject under the Equality Act 2010 to the ‘Public Sector Equality Duty’ (s. 149).
Section 149(1) provides that a public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
This section can also be helpful in challenging public authorities about their legal failings regarding age. If, say, Mr O’Reilly’s experiences are due to ageist policies or practices in his local authority or other public sector employer, he might find it helpful to be able to challenge this by citing s. 149(1). Yet, Nanji and Harris don’t explore the nature of his experience.
Case law, guidance, research, and secondary literature on age discrimination
Fourthly, there is a considerable, and growing, body of case law on age discrimination.
For those who may not have a subscription to an online legal research database, Lewis Silkin LLP has helpfully provided online an unofficial selection of relevant cases, with links to judgments.
The Equality and Human Rights Commission (EHRC), the statutory body with the responsibility for, among other things, eliminating unlawful discrimination in Britain, has published advice and guidance on age discrimination.
Acas, the Advisory, Conciliation and Arbitration Service in Britain, has also produced guidance on avoiding age discrimination in the workplace.
Similar non-discrimination provisions exist elsewhere in the UK: in Northern Ireland (under The Employment Equality (Age) Regulations (Northern Ireland) 2006, as amended); with similar powers and duties to the EHRC vested in the Equality Commission of Northern Ireland.
In addition to this legislation, case law, advice and guidance, there is a considerable body of secondary literature on age discrimination in the UK, going back decades. It includes the late Professor Malcolm Sargeant’s book Age Discrimination in Employment published in 2006.
The extent of discrimination against people over 50 seeking work isn’t new. The Confederation of British Industry reported in 2021 that the majority (65%) of older workers believe the jobs market is closed to them by the time they reach 55.
Research in 2021 revealed that age discrimination claims in England and Wales had increased by 30% over the previous year. Rest Less, the job site for older people that commissioned the research, said that the coronavirus lockdowns ‘exacerbated age discrimination in both the workplace and the recruitment process.’
Nanji and Harris make no reference to that case law, guidance, secondary literature, or research on age discrimination.
Their piece fails to identify the problem of age discrimination as a long-standing, well-documented issue.
In fact, in their 863-word piece there isn’t a single reference to age discrimination.
Vindicating rights, securing remedies
Fifthly, all of this matters because those who read this piece are left with no information—despite information suggesting discrimination—that there is in fact discrimination or potential discrimination, that such discrimination is unlawful, that the person subjected to such discrimination has rights, and that there are remedies for that violation.
Responsible journalists would acknowledge the discrimination or potential discrimination.
For those workers who aren’t well off, who don’t have inherited wealth, significant savings or assets, or family or friends to fall back on if they are unemployed, they are dependent on those wages. Their rights not to be discriminated against in work are, therefore, vital for their subsistence and quality of life.
Anyone who, like Mr O’Reilly, believes they have faced age discrimination might be enabled through responsible journalism to contact the Equality Advisory and Support Service, which advises and assists individuals on issues relating to equality. They might even be informed they could use a union or charity for help.
The union Unison, which represents those working in public services, campaigns against age discrimination in the workplace. It was Unison that won, in 2007, what is believed to have been the UK’s first age discrimination case.
Last year, GMB Union successfully represented one of its members in an age discrimination case in England. It helped David Robson, 69, secure an award of just under £25,000 in compensation as a result of his ex-employer’s age discrimination and unfair dismissal.
The TUC (Trades Union Congress), a national trade union centre and federation of trade unions in England and Wales representing the majority of trade unions, has also produced information on age discrimination.
The ILO (International Labour Organisation), a United Nations agency whose mandate is to advance social and economic justice by setting international labour standards, has also been concerned with age discrimination in employment.
It’s not as if journalists can’t or don’t report on such age discrimination. The free weekly newspaper Jewish News, which serves the Jewish communities of Greater London, ran a story on the CMI’s research and interviewed representatives of two charities helping British Jews find jobs. Both referred specifically to ‘age discrimination’.
Camilla Cavendish at The Financial Times also cited the CMI’s research, stating “workplace age discrimination seems to be increasing.” She referred to research from the US reporting that 78% of older American workers claimed to have seen or experienced it in 2020, the highest level since 2003.
The day before Nanji and Harris’ piece, Jane Croft, also at The Financial Times, reported on such discrimination, as well as including reference, like Nanji and Harris, to data on the so-called ‘economically inactive’ over-50s.
Nor is there any mention by Nanji and Harris to ageism, which is closely related to age discrimination. Again, ageism is well-documented. Research in 2020 by the Centre for Ageing Better, for instance, on the role and impact of language and stereotypes in framing old age and ageing in the UK was widely reported.
BBC Charter and Editorial Guidelines
A sixth reason to be concerned about the piece by Nanji and Harris is that it falls short of the requirements of the BBC Charter and the BBC Editorial Guidelines, both of which state, as a primary purpose of the BBC, that the corporation should ‘provide impartial news and information to help people understand and engage with the world around them,’ ‘reflect the United Kingdom, its culture and values to the world,’ and ‘carefully and appropriately assess the views and interests of the public and audiences, including licence fee payers, across the whole of the United Kingdom.’ Let’s look at each of these in turn.
Help people understand and engage with the world around them
This requirement cannot reasonably be expected to apply to every single piece of news and information. The BBC generates a myriad mass of pieces of news and information, from single sentence tweets through to recurring investigative series. A brief snippet of news on the latest unemployment figures in the UK, for instance, should not be expected to name discrimination even though discrimination might have a small impact on those figures. There must be a particular relationship between the requirement and the nature of the particular news. Arguably that occurs where news or information is of sufficient length, depth, analysis, and salience to an issue where avoidance of that issue could not reasonably be said to ‘help people understand and engage with the world around them.’ More pointedly, it would be difficult to argue that a piece of news which is of sufficient length, depth, and analysis and that presents information suggesting age discrimination yet fails to name that discrimination or the fact that such discrimination is unlawful provides ‘information to help people understand and engage with the world around them.’
Reflect the United Kingdom, its culture and values to the world
This requirement in the Charter is perhaps less obvious but it is no less important in considering the failure by Nanji and Harris to name discrimination and state that such discrimination is unlawful.
One of the UK’s much-vaunted values internationally is its commitment to equality and non-discrimination. The UK’s Conservative and Liberal Democrat coalition government policy, for instance, stated: “The UK works to support equality and non-discrimination for all people.”
The UK is, as a member of a number of international human rights bodies, required to comply with its membership obligations, including in relation to equality and non-discrimination.
The UK is a member of the Council of Europe and has both signed and ratified article 1 – the right to work – of the 1961 European Social Charter. Paragraph 2 of that Article requires members “to protect effectively the right of the worker to earn his living in an occupation freely entered upon.” This has been interpreted by the European Committee of Social Rights, which monitors compliance with the Charter, to include “prohibition of all forms of discrimination in employment”, adding that “legislation should prohibit any discrimination in employment on grounds of age.” The UK has referred to the non-discrimination provisions of the Equality Act 2010 in a number of reports submitted to the Council of Europe in relation to its Charter obligations.
In addition, at the UN level the UK’s latest report (2022) to the UN Periodical Review on human rights compliance stated, under the heading ‘Equality and discrimination’, that the “UK Government takes a coordinated approach to tackling all forms of discrimination on the basis of the protected characteristics.” The report subsequently referred to ‘the nine protected characteristics under the Equality Act 2010,’ thus conveying that the initial reference to ‘the protected characteristics’ are to those in the Act (which includes ‘age’).
It is indisputable in the post-Second World War era of respect for human rights, equality and non-discrimination, certainly in the context of the UK’s international legal obligations and corresponding reporting requirements, that the UK’s ‘values’ include those of non-discrimination. We no longer live in the era, when the BBC was created in 1922, when human rights, equality, and non-discrimination were barely developed and hardly ‘values’ of the country. It is obvious, however, that the values of the country which are referred to in the Charter are those which are current, not those frozen at the time of the BBC’s creation. A contemporary audience might be forgiven for thinking that some BBC journalism was written for a 1920s audience given its lack of reference to human rights, equality and non-discrimination.
Assess the views and interests of the public
The views and interests of the public extend to their knowledge and understanding of law that protects their rights.
While the Charter refers to this requirement as a discrete requirement, the BBC’s Editorial Guidelines provide a basis for establishing a connection to the BBC’s broader Charter requirement to ‘act in the public interest.’ While the Guidelines acknowledge that there is ‘no single definition of public interest’, it includes the following instances: ‘providing information that assist people to better comprehend or make decisions on matters of public importance’ and by ‘exposing […] injustice.’ It is not difficult then to see how a piece that suggests discrimination but which fails to name that discrimination and the fact that such discrimination is unlawful meets those instances. To be clear, that failure is not ‘providing information that assists people to better comprehend or make decisions on matters of public importance’ or ‘exposing injustice.’
Lazy journalism, casual indifference to others
Nanji and Harris’s piece smacks of lazy journalism. How hard is it to use a search engine to research age and discrimination? But this goes beyond lazy journalism. It also reflects a casual indifference to the material realities faced by working people and the tools they need to name and challenge discrimination.
Class-based indifference?
Is this another reflection of the mentality of largely middle-class journalists in the BBC who are often ignorant, ill-informed and uncaring about the hardships faced by those outside their own class? I’ve written previously (as have others) about this problem with the background of reporters and executives at the BBC.
It is necessary to repeat that the BBC is required by its Charter to:
ensure it reflects the diverse communities of the whole of the United Kingdom in the content of its output, the means by which its output and services are delivered (including where its activities are carried out and by whom) and in the organisation and management of the BBC.
The BBC cannot be said to reflect the diverse communities of the whole of the UK when the vast majority of its reporters, such as Nanji, come from privately educated and elite higher education backgrounds, such as the universities of Oxford and Cambridge. People from these backgrounds tend not to be able to relate to, understand or empathise with people not from those backgrounds, especially working-class backgrounds. This is part of the functioning of social class, especially in the UK; where wealth, status, social capital and what I have termed identity capital are inherited or otherwise acquired, then cultivated, and hoarded by those wishing or content to distinguish themselves from others and to seek to preserve out of self-interest those forms of capital and the benefits they entail.
It’s hardly surprising that the lead journalist in this piece, Noor Nanji, comes from such a background. Educated at a private school, she got an MA in History at the University of Oxford (which likely means she got a BA and, because of an obscene rule at Oxford, could then apply for an MA: it’s not earned).
Despite an education mainly in the arts, she went on to work for 7 years in ‘equity sales’ for Bank of America in London/ Singapore, before working as a ‘reporter’ for a year in London. She then got a job as a journalist with the BBC. Her LinkedIn profile does not list any formal postgraduate qualification in journalism.
In 2021, she admitted to changing her first name from ‘Noor’ to ‘Nina’: not because she feared discrimination but “because so many people were getting it wrong”. She levered that questionable claim into a piece about people trying to ‘fit in’ (again, NOT dealing with discrimination).
Work by Professor Nicole Stephens and colleagues in the US on social class, self-identity and inequality may help in understanding certain journalists’ inability or unwillingness to address discrimination. Stephens and colleagues focus on the US, but their work has wider resonance. They found that those from low-income, working-class environments have higher levels of material constraints than the middle-class, and identify as interdependent with others and the social context. It would not be difficult to imagine that such understanding of interdependence and social context allows, indeed entails, engagement with structural constraints (such as discrimination) and the means—the social context—by which those constraints might be challenged. By contrast, Stephens and colleagues found, those who grew up in middle‐class households ‘need to worry far less about making ends meet or overcoming persistent threats … Instead, middle‐class contexts enable people to act in ways that reflect and further reinforce the independent cultural ideal – expressing their personal preferences, influencing their social contexts, standing out from others, and developing and exploring their own interests.’ The resulting ‘expressive independence’ might be said to both explain Nanji’s apparently unusual framing of her wish to ‘fit in’ by changing her name rather than to challenge discrimination, and, by extension, to use Mr O’Reilly’s experience as texture in what was otherwise largely presentation of limited data from a management organization and commercial sources and not see or name the discrimination experienced by him (and others like him).
Nanji and Harris quote from the speech by Jeremy Hunt, Chancellor of the Exchequer, in the previous week in which he referred to almost 300,000 fewer people in employment than before the pandemic before adding: “So, to those who retired early after the pandemic, or haven’t found the right role after furlough, I say: Britain needs you,”
This Kitchener-type labour-need jingoism, glosses over the preceding inadequate explanations for the low proportion of those in older age bands in employment. It’s perhaps no surprise that the CMI’s Head of Press and Public Affairs would retweet approvingly in pro-government terms a link to Nanji and Harris’ piece: “Thanks @NoorNanji and @BBCNews for highlighting the need for employers to help us heed the Chancellor’s call to the over-50s that ‘Britain needs you’. #EveryoneEconomy.”
Aside from the quotes from Mr O’Reilly, Nanji and Harris rely largely on the data and a quote from the CMI (plus the reference to Hunt’s speech, and quotes from a HR executive at multinational insurance company Axa and the Director General at the British Chamber of Commerce). Croft, in contrast to Nanji and Harris, also cited in her piece in The Financial Times research by the Office for National Statistics in September 2022 which found adults aged between 50 and 54 were more likely to leave work due to stress and not feeling supported in their job.
The Institute has a patchy record in naming age discrimination. During its 75th anniversary in 2022, it produced a 15-page discussion paper ‘Age in the Workplace’. The paper fails to use the word ‘discrimination’ once. And, yet, in an accompanying video, ‘The Workplace in Review: Age’, to mark the anniversary, there is passing reference to discrimination (although not to the fact that this is against the law).
Anthony Painter, the CMI’s Director of Policy and External Affairs (BA, Trinity College, University of Cambridge), shared Nanji and Harris’ piece via Twitter while calling for “the need to develop age friendly [sic] employment.” Again, no reference to tackling discrimination. You aren’t going to win any age discrimination case by arguing that an employer wasn’t ‘age friendly’.
It’s as if people who have been privileged enough to be able to attend private schools and these elite institutions are oblivious to the need for the legal protections that are the guardrails against poverty or hardship for most of the population.
Croft cited in her Financial Times piece the 2015 report on later-life work, A New Vision for Older Workers. That report refers 35 times to discrimination, stating clearly at the outset: ‘Age discrimination and unconscious bias remain widespread problems in the UK labour market and more action is needed to overcome this.’
The report set out three aims, the ‘R’s in its sub-title: retain, re-train and recruit. It stated, against the last R: ‘stamp out age discrimination from the recruitment process.’
Absorption of a political ideological shift?
There has been a clear political ideological commitment in the current Conservative government to move away from recognising, respecting and protecting rights. The government’s insistence on reforming the Human Rights Act 1998 is one example of this move. Another is its Northern Ireland Troubles (Legacy and Reconciliation) Bill, which would deny justice to those affected by conflict-related violence in Northern Ireland. There are numerous other examples that could be cited here, but these two suffice as indicative for present purposes.
Associated with this move away from recognising, respecting and protecting rights is the current government’s rejection of institutional or structural explanations for discrimination, which has led to a reluctance to use the language of discrimination. Instead, the neutered language of ‘disparities’ or ‘differential outcomes’ is used. An example of these shifts can be seen in the discredited government-appointed Sewell Commission report Race and Ethnic Disparities in 2021.
For those of us who have researched, taught and engaged in activist work on equality, human rights and discrimination, these shifts represent not only egregious dereliction from the government’s obligations but also betrayal of those most in need of those rights. In addition, they undermine and may make it more difficult to think of institutional or structural responses to such extensive discrimination, including through changes in government policy.
Are these political ideological shifts away from recognising, respecting and protecting rights reflected in the apparent inability or unwillingness of some journalists to name discrimination?
Those who rely on the BBC for news, certainly those who pay the BBC licence fee, certainly deserve better of its journalists.
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The essay was amended on 10 February 2023 to add hyperlinks to several references, to add information at several points to better help the reader, and to correct a few typos. Apologies for any inconvenience caused by the initial errors.
© Dermot Feenan 2023