The BBC found itself on the cusp of an avalanche of equal pay claims this month, following the success of Samira Ahmed in the Employment Tribunal.
Since 2012, Ms Ahmed has presented the BBC’s “Newswatch”– a 15 minute weekly programme looking back at its news coverage, analysing editorial decisions and airing viewer comments. She was paid £440 per episode. Meanwhile, Jeremy Vine, the presenter of the BBC’s Points of View programme since 2008, was paid £3,000 per episode.
Perhaps unsurprisingly given the similar format of the programmes, Ms Ahmed queried why this was the case. In the context of the publication of the BBC’s pay data for on-air talent in 2017, which indicated that all of those BBC presenters paid over £500,000 per year were male, Ms Ahmed drew the conclusion that the difference in pay was due to the fact she is a woman. Having followed an internal grievance process, Ms Ahmed submitted an equal pay claim to the Employment Tribunal.
What does the law say?
The Equality Act 2010 provides that person A’s work is equal to person B’s work if it is like B’s work, rated as equivalent to B’s work or of equal value to B’s work.
To be “like work”, A’s work must be “broadly similar” to B’s work and any differences should not have any “practical importance”. If work is found to be equal, then a “sex equality clause” is deemed to be included in A’s contract of employment to modify A’s contract so that A is treated no less favourably than B. In summary, A’s pay will be increased to B’s level.
An employer has a defence if it can show that there was a “material factor” that accounted for the difference that was not down to sex and that the material factor relied upon was a proportionate means to achieve a legitimate aim.
What was the decision?
The Employment Tribunal found that Ms Ahmed’s work was “like” Mr Vine’s work. The judgment listed a number of similarities, including that both programmes were a short “magazine” format that “aired and discussed the viewers’ opinions on BBC programmes”. In each case, the producer decided the content of the programme and communicated it in advance to the presenter and, whilst both presenters made minor adjustments to the script, both scripts had already been written by the producer.
Whilst the BBC attempted to argue that Points of View had a lighter tone, and as a result Mr Vine needed to have a “glint in the eye” and to be cheeky, the Tribunal did not accept that such cheekiness required any “skill or experience” and therefore the lighter tone of Points of View did not stop the two presenters’ roles as being “broadly similar”.
Having determined that Mr Vine’s work was like that of Ms Ahmed, it was then for the BBC to show that the difference in pay between them was down to a “material factor” that was not the presenters’ different sex. The BBC tried to rely upon a number of factors, including the profiles of the two programmes, the different profiles of the presenters (the BBC argued that Mr Vine had a higher public profile than Ms Ahmed) and that Mr Vine attracted a higher market rate than Ms Ahmed.
However, when the Tribunal analysed these factors, it found that the 2008 decision to pay Mr Vine £3,000 per episode had been taken before any of these factors relied upon by the BBC had taken place. For example, in trying to demonstrate that Mr Vine was more recognisable to audiences than Ms Ahmed, the BBC tried to rely upon evidence from 2017.
The Tribunal made clear that it was for the BBC to show why it decided in 2008 that Mr Vine’s work was worth £3,000 per episode and why, in 2012, those who set Ms Ahmed’s pay had decided her “like work” was only worth £440 per episode. The BBC had to demonstrate that the presenters were paid at a different rate for a “material factor” that was not their sex. It was not enough for the BBC to try to assert that matters that happened after that decision was made justified the difference in pay.
The Employment Judge stated that the BBC’s difficulties in demonstrating why the pay decisions had been made were “easily surmountable if an organisation has transparent pay structures or processes for determining pay and for recording the rationale of its decisions about levels of pay.”
What impact could this decision have?
This is only an employment tribunal decision and it doesn’t change the law, but it is a high-profile reminder of the protections afforded to those who consider they are paid lower than equivalent colleagues because of their sex.
The BBC will not be unique in failing to document why decisions to set pay at certain levels have been made, particularly in the private sector. To protect themselves from such claims in the future, employers should heed the tribunal’s warning and implement clear processes to demonstrate why they made their decisions.
As for the BBC itself, Ms Ahmed had the advantage of finding a comparable male colleague, carrying out virtually an identical role and who was paid at six times her level of pay. It remains to be seen whether this is the tip of the iceberg and rather than being an extreme anomaly, it is instead indicative of a culture of disparity of pay within the organisation. Ms Ahmed was one of a number of women who brought a collective internal grievance against the BBC about their pay and so we may yet see a wave of equal pay claims against the company in a similar vein.