What the Miriam O'Reilly Case can teach us about documenting decisions!

Richard Lyons

GD People Ltd

HR Consultant

As this is such a high profile case I don't intend to revisit the facts in any detail. We all know by now that Ms O'Reilly, 53, was one of four female presenters over the age of 40 axed from Countryfile in 2008 who took the BBC to a Tribunal, claiming both sex and age discrimination, as well as victimisation. She won on the ground of age discrimination. What I want to focus on is a section taken from the tribunal transcript and quoted below. "The central question in this case is why the decision was taken that the claimant would no longer be a presenter of Countryfile. That necessarily involved us considering by whom the decision was taken, when the decision was taken and on what basis. "One might have expected that the when and by whom questions would be easy to answer. That was not the case. "There is no documentation whatsoever of this decision-making process. "The lack of documentation and failure to apply a formal procedure does not, of itself, evidence discrimination ... However, that failure makes it much more difficult for the respondent [the BBC] to explain the decisions and to state with clarity the grounds upon which the decisions were taken. And so there may have been compelling reasons not connected to age discrimination to explain why the BBC took the decision they did, not least the move of the programme to a prime time evening slot which required skills Miriam may not have had! The point is that to make this or any argument in defence, the BBC should have documented the decision making process. Without evidence of their thought process the tribunal was always likely to find in Miriam's favour given the burden of proof in discrimination cases generally. Once a claimant has proved facts from which a tribunal could decide there was a case to answer then the burden to disprove discrimination shifts to the Respondent. To do so without documentary evidence and having to rely on the credibility of your witnesses (even the most honest witness can struggle under cross examination) is always going to be an up-hill battle. At a time when age discrimination is on the increase (79% since 2008/9), this is a great victory for Miriam and for those facing this form of discrimination, but the case tells us as much about the importance of evidence and the need to properly articulate and document your reasoning for taking risk laden decisions. It should also be a reminder to all employers to update their equal opportunity policies following the introduction of the Equality Act 2010.

Richard Lyons

GD People Ltd

HR Consultant

Experienced and effective employment tribunal representation. Human Resource company specialising in assisting and/or conducting grievance and disciplinary procedures. Contact us on 0161 872 4334…