Last week, an Employment Tribunal upheld Samira Ahmed's (presenter of "Newswatch") claim against the BBC for equal pay. Samira Ahmed's claim was in the region of £700,000, for pay differential over a six year period, compared with Jeremy Vine (presenter of "Points of View"). This decision highlights the BBC's lack of understanding of the equal pay legal framework.
Section 65 of the Equality Act 2010 (EqA 2010) provides the relevant test for equal pay claims, which requires an Employment Tribunal to assess whether an employee can show that they are doing ‘like work’ or ‘work rated as equivalent’ or ‘work of equal value’ to that of another employee of the opposite sex, and are paid or treated less favourably. If this is satisfied, there will be an automatic presumption that the difference in pay or treatment is due to the difference of sex and it will be the employer's burden to disprove that presumption.
In defending a claim for equal pay, an employer must show that the explanation for the variation is not the employee's sex. To do so, it must provide 'genuine' reasons which are material factors in explaining the difference in pay.
Cases will be assessed on a case by case basis but it is clear that significant evidence will be required to defend such a claim, including contemporaneous evidence showing what was considered by an employer at the time of agreeing salary levels.
Samira Ahmed first raised concerns with the BBC concerning her pay on 16 October 2017. She asked for a salary review to be conducted by the BBC and for her comparison on equal pay to be Jeremy Vine; she was not aware, at this point in time, that Jeremy Vine had been receiving six times more than what she had been earning for the last six years that she had been presenting Newswatch.
The BBC conducted a review of the Samira Ahmed's salary but made it clear that it would not provide any information in relation to Jeremy Vine's salary. In February or March 2018, Jeremy Vine contacted Samira Ahmed directly (following a request from Samira Ahmed) and informed her of his remuneration in respect of Points of View; Jeremy Vine was paid £3,000 per episode of Points of View, whereas Samira Ahmed received £440 per episode of Newswatch.
Despite informing the BBC that she was now aware of the major pay disparity with Points of View, Samira Ahmed's concerns were dismissed by the BBC. This, in summary, was on the basis that, in the BBC's opinion, Newswatch was a 'News' show whereas Points of View was an 'Entertainment' show and had a higher profile and larger audience.
Samira Ahmed issued a claim in the Employment Tribunal on 29 November 2018.
The Employment Tribunal found that the work Samira Ahmed did on Newswatch was, "the same or, if not the same, very similar" to the work carried out by Jeremy Vine on Points of View, and therefore was 'like work'. The BBC had tried to argue that Points of View required a presenter with "a glint in the eye" and who had "to be cheeky". This Employment Tribunal stated that it had difficulty understanding what the BBC meant by this or how it translated into a skill which differentiated the work of the two presenters.
The Employment Tribunal did not agree with any of the BBC's alternative reasons for the pay differential and in fact, found that evidence contradicted the BBC's position in a number of respects including, for instance, the latest audience figures showing that Newswatch attracted a larger audience viewing than Points of View. The Employment Tribunal stated that,
"The BBC found itself in difficulties in this case because it did not (and, to an extent, still does not) have a transparent and consistent process for evaluating and determining pay for its on-air talent. It has no records (or, if it has them, it has not produced them) of how the pay levels for the Claimant and Jeremy Vine were determined... The effect of that is that there is no evidence before us of the factors that were relied upon to determine the initial levels of pay for the Claimant and Mr Vine".
This decision does not come as too much of a shock. It has been widely reported that there are longstanding equal pay issues at the BBC. A report produced by the House of Commons Digital, Cultural, Media and Sport Committee, on 23 October 2018, stated that, "The BBC pay structure lacks central oversight and allows too much managerial discretion over salaries... This culture of invidious, opaque decision-making must end".
The BBC will need to take stock of this decision – there are as many as 20 further cases set to be heard and more may follow in light of this decision.
The BBC will not be the only employer that has fallen foul of the equal pay legal framework. If you are an employer, now is the time to review pay structures and ensure that sufficient oversight takes place, that decisions are made against objective and transparent criteria and that the decisions are recorded.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.