The BBC has opened itself up to a cascade of equal pay claims following Samira Ahmed’s success in the Employment Tribunal on 10 January.
The Facts
Ms Ahmed is a BBC news presenter and since 2012 she was paid £440 an episode to present Newswatch, a 15 minute weekly programme reviewing the BBC’s news coverage that week. However, Jeremy Vine, who had been presenting since 2008, was paid £3,000 an episode to present Points of View, a show with a similar format.
Ms Ahmed queried why this was the case and, having followed an internal grievance process, she then submitted an equal pay claim to the Employment Tribunal.
The Equality Act 2010
There are three categories of equal work under the Equality Act 2010: "like work", "work rated as equivalent" and "work of equal value". To be “like work”, the work must be “broadly similar” and differences should not have any “practical importance”.
If the work is found to be equal, an equality clause will apply to the claimant’s contract of employment modifying it so that she is treated no less favourably than her comparator.
Employers have a defence if they can show that there was a “material factor” which explains the difference in pay. This factor must be unrelated to sex and must be a proportionate means of achieving a legitimate aim.
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 had a short format which “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.
The BBC tried to argue that the lighter tone of Points of View required Mr Vine to be cheeky, which differentiated his role from Ms Ahmed’s. However, the Tribunal did not accept this and found that the two presenters’ roles were “broadly similar”.
To defend the claim, the BBC tried to argue that the roles could be differentiated by “material factors” that were not the presenters’ sex. They referenced the popularity of the programmes and the individual presenters’ reputations, citing (amongst other things) that Mr Vine attracted a higher market rate than Ms Ahmed.
However, the Tribunal found that the BBC had decided the rate of Mr Vine’s pay back in 2008 when he first started presenting the show, before any of the evidence presented by the BBC had existed. The reality was that the BBC had decided in 2008 that Mr Vine’s work was worth £3,000 per episode and that, in 2012, Ms Ahmed’s “like work” was only worth £440 per episode. The BBC had not adduced any evidence which set out the reasoning of those who made the decision to set the presenters’ pay at those levels, at the time those decisions were made.
What does this mean?
This decision doesn’t change the law but acts as a high profile reminder of the protections afforded to those who have been paid lower than colleagues doing ‘like work’ because of their sex. Employers should protect themselves from similar claims by implementing clear processes to demonstrate why they make decisions on employees’ pay and ensuring that these decisions are unrelated to sex.
Rebecca Berry