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Employers need to watch treatment of older workers

The Dominion Post – 16 April 2014

Ageism is an issue that consistently lurks beneath the surface of employment decisions. In many countries, including New Zealand, human rights legislation prohibits discrimination on the basis of age. However, that doesn't stop it.

Recently Michael Buerk, a BBC news reader, has created controversy with his colourful comments about female television presenters.

Buerk has criticised female television and media workers who complain about losing their jobs when they reach an advanced age. He said it was "fair enough" for television companies to get rid of older employees to "prune the raspberries to make way for new growth".

Buerk, who is himself ageing, also went on to say that "if you got the job in the first place because you look nice, I can't see why you should keep it when you don't". In support of his argument, Buerk cited the comments of fellow journalist Anne Robinson, who said that "the viewers don't want to watch ugly".

To be fair to Buerk, he did try to add some balance to his comments by claiming that old presenters are becoming "trendy" again and that television is now aimed at much older audiences.

In New Zealand, the Humans Right Act prohibits unlawful discrimination on the basis of age against people 16 or older. Accordingly, it is unlawful to discriminate against employees and job applicants on the basis of age. Only in heavily regulated safety-sensitive industries such as air travel are exceptions made.

Despite the law, readers will no doubt be aware of instances where the issue of an employee being too old is disguised by lines such as "they don't fit in our work culture" or "they are not performing adequately".
The UK's anti-discrimination laws are also at odds with Buerk's comments, and this has been tested in the courts.

In 2011, Miriam O'Riley, a BBC presenter, took her employer to the UK Employment Tribunal claiming age and sex discrimination. She was one of four presenters, all in their early 40s and 50s, who were dropped from the rural affairs show Countryfile when it was moved to a primetime slot.

The tribunal found that wanting to appeal to a prime-time audience and younger viewers was a legitimate aim for the BBC to have. However, it did not accept that younger presenters were required to appeal to such an audience. It concluded that the presenters hired by the BBC to replace O'Reilly and her colleagues did not have the same profile and had been selected based on their younger age.

The tribunal therefore upheld O'Reilly's age discrimination claim and awarded her damages.

New Zealand employment and anti-discrimination laws in all likelihood would deliver the same outcome were O'Reilly's case heard here.
As people age, hidden discrimination emerges.

Certainly there may be performance issues which do often arise when employees start to slow down and those in the public arena such as television presenters are likely to be most affected.

Employers need to remember, however, that despite any concerns they may have, age in itself is usually never enough to get rid of an employee.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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