Last month, the BBC’s employment practices hit the headlines again when presenter Samira Ahmed won her equal pay case against the corporation at an Employment Tribunal. With substantial amounts of back-pay at stake for a period from May 2012 to September 2018, the case highlights some important elements that all employers need to be aware of in respect of equal pay.
What is equal pay?
Men and women are entitled to equal treatment in the terms and conditions of their employment contract. This means a right to equal pay for:
- Doing the same, or similar, jobs.
- Doing work that has been rated as equivalent, or in the same grade.
- Doing work of equal value, where jobs might be different but require a similar level of skill.
Since the test applies to the terms of the employment contract, equality covers not just pay in the form of salary and bonuses, but also benefits including pension contributions and company cars, and aspects such as holiday entitlement and hours of work.
As part of the process of establishing an equal pay claim it is necessary to find a comparator – a person of the opposite gender doing like work or work of equal value.
In Ahmed’s case, she considered that her work on Newswatch was comparable to the work done by presenter Jeremy Vine on Points of View – work for which he received significantly more pay.
Both programmes are 15 minutes long, pre-recorded, presenter-led programmes which cover viewers’ opinions on BBC output – although for Newswatch topics are limited to the BBC’s news output while Points of View covers all BBC channels. Both took around 3.5-4 hours to record and were scripted by producers. In the Newswatch role, Ahmed would conduct interviews frequently, something which Vine did only occasionally for Points of View. The Tribunal considered that, despite minor differences in the two shows, the work each did was clearly the same or very similar.
As might be expected, viewing figures for both shows were looked at, with Newswatch having viewing figures of around 1.5m during the period in question, compared to 1.8m declining to 1m for Points of View. While the viewing figures are comparable, the Tribunal did not consider that they had any bearing on whether the work done by the presenters was the same.
Presumption of discrimination
Once it has been concluded that the work of two individuals of opposite gender is the same or similar (or alternatively of equal value), the law presumes that if there is a difference in pay, the difference is due to their gender. The burden falls on the employer to prove that any difference is not due to gender and it is necessary for the employer to give evidence of material factors, not related to gender, for the pay differential.
In Ahmed’s case, Vine’s fee per episode was six times more than Ahmed received for Newswatch but the BBC argued that there were a number of differences in profile between the two programmes and the two presenters – with both Points of View and Vine having a higher profile – arguments the Tribunal rejected.
The BBC also referenced figures showing more viewers recognised Vine compared to Ahmed. However, much of this evidence post-dated the time at which pay decisions were taken, which the Tribunal pointed out meant it could not have been material to the pay decisions. In its discussions, the Tribunal highlighted the challenges that the BBC had in defending pay scales with very little contemporaneous evidence showing how decisions had been made. This shows how employers need to provide contemporaneous evidence which supports the decisions they took.
Finally, the BBC highlighted that Ahmed was not paid less than the previous, male, presenter of Newswatch. While this might seem an obvious comparator, the Tribunal observed that Ahmed had significantly more broadcasting experience than the presenter she replaced, who had none. Given that the BBC were arguing her skills were different to Vine which contributed to a differential in pay compared to his work for Points of View, the Tribunal were unconvinced that the different skills could then be ignored when making the comparison between Newswatch presenters. Simply showing that a man has been paid the same to do the same job is not evidence of equal pay, if the woman carrying out the job brings significantly greater skills and experience to the role.
Ahmed’s case – which involves a six-figure amount of back-pay for a period of six years - shows how important it that employers can provide evidence from the time which supports the pay decisions that they took.
Once it has been established that two people are doing equal work, the burden of proof falls on the employer to show that they have not discriminated on the grounds of gender in setting pay.
Ensuring that pay scales and structures are, as far as possible, clear and transparent within the organisation, should also help everyone to understand how pay decisions have been reached.