BBC loses high profile equal pay claim
Some practical issues
The widely reported equal pay case featured BBC news reporter Samira Ahmed against her employer, the BBC, where she alleged that she was paid less than Jeremy Vine, even though they were carrying out equal work. The difference in pay was £700,000. Since the Tribunal’s findings the BBC has settled the claim with Ms Ahmed. The case caused widespread adverse publicity for the BBC and was one of many claims brought no doubt causing disruption as well as ill-feeling.
The points of comparison were Samira Ahmed’s show Newswatch and Jeremy Vine’s show Points of View. The Employment Tribunal, in a well-reasoned and detailed judgment, was not convinced by the BBC’s argument that Jeremy Vine’s show had a higher profile and greater audience recognition than Samira Ahmed’s or that he would move to a competitor if he wasn’t paid the higher show fee which could justify the difference in pay and considered that these factors were irrelevant to considering whether they were carrying out “equal work”.
The case is a useful reminder to employers on how Tribunals approach equal pay cases. A Claimant only has to establish that they did “like work”, “equivalent work” or “work of equal value” to a comparator of the opposite sex. The burden of proof then shifts to the employer to show that gender was not the real reason for the pay disparity. To discharge the burden of proof the employer will need to be able to show real evidence of its thinking at the time it set the pay levels, as to why different workers commanded different pay rates where their work was the same, equivalent or of equal value.
It will be crucial for employers to be able to evidence the reasons for their pay decisions at the time they were made rather than waiting for litigation and then looking back in time to justify a pay discrepancy. The BBC defended the claim with many arguments to justify why Mr Vine was paid more but it failed to persuade the Tribunal that, in fact, any of these arguments were justifiable or that they were taken into account when deciding what Mr Vine would be paid. On this basis the BBC failed to discharge the burden of proof and so the Tribunal was entitled to find that, by default and in the absence of explanation, the difference was due to gender.
Why does this apply only to female versus male or male versus female comparators?
It is lawful for an employer to pay a female employee more than another female employee for doing the same job, arguably creating unfairness; why is this?
This is not unlawful because there will be a reason underpinning the employer’s decision on pay that is, in fact, not related to gender (because it simply cannot be as both workers are of the same sex). These factors might be experience, market forces, profile, career history as indeed they might be across different genders, but when comparing the same sex, the employer cannot have behaved in a discriminatory fashion and therefore it cannot be discriminatory on the grounds of sex.
Practical tips for business
- Look closely at the work that the workers are undertaking. Is it the same or does it have the same value? If so, it is unlawful to pay workers of the opposite sex less/more on reasons such as experience, qualifications, profile, risk of moving to a competitor. It is the “work” that is relevant and which is the key consideration, not the person, their experience and possible market rate.
- If there are pay discrepancies across the genders then consider whether the work can be changed to achieve fairness. Can roles be changed with responsibilities taken away or working hours decreased so that the work is not the same? If not consider how rates can be harmonised upwards or downwards to achieve parity. Pay decreases are likely to be difficult to implement.
- Remember that a Tribunal will look at what the employer thought and did to effect fair pay at the time it set the pay rates. It will not be possible to discharge the burden of proof retrospectively if the employer cannot demonstrate why it set the pay rates it did at the time. Theoretical considerations and what “would” justify a pay difference will not suffice.