In its recent judgment the Employment Tribunal ruled that Samira Ahmed's work on "Newswatch" was the same or broadly similar to Jeremy Vine's work on "Points of View" for which he was paid six times more. The BBC failed to show that the pay gap was due to another material factor and not as a result of sex discrimination. Therefore, there was no lawful reason for the 'striking' pay disparity between the presenters.
It is an employer's duty to ensure that men and women are paid equally for equal work. Yet, equal pay claims against household names continue to grab the headlines. What can employers learn from these cases and when can a pay gap between male and female employees doing equal work be justified?
Who can bring an equal pay claim?
Under the Equality Act 2010, an individual can bring an equal pay claim if they can identify a person of the opposite sex who is employed:
- by the same employer, or an "associated employer";
- in the same establishment, or at a different establishment if broadly similar terms and conditions of employment apply.
The individual must also show that they and their comparator are carrying out equal work: that is, like work (the same or broadly similar work), work rated as equivalent or work of equal value.
Samira Ahmed and Jeremy Vine were found to be doing 'like work': any differences between the programmes were minor and did not impact on the work carried out or the skills and experience required to do that work. In particular, the Tribunal held that a requirement for humour and "a glint in the eye" did not mean that extra skill or experience was required.
Can an employer justify a pay gap between male and female employees performing 'like' work?
Yes - but only if another genuine material factor (which is not itself discriminatory) gives rise to the disparity.
In the Samira Ahmed case the BBC argued that the following reasons (market forces) contributed to the pay gap rather than sex discrimination:
- Jeremy Vine was more recognisable to the public;
- Presenters of established programmes, with former high-profile presenters, are typically paid more;
- Samira Ahmed had less experience than Jeremy Vine; and
- Jeremy Vine's market payable rate (his rate of pay for doing the same job at another broadcaster) was higher than Samira Ahmed's.
The Tribunal was unconvinced and found that the BBC had failed to demonstrate that any of these factors explained the difference in pay at any stage. Pay had been set when each presenter had first started presenting their programme, and simply continued after that.
What can employers learn from this case?
This decision highlights the costly consequences for employers facing equal pay claims. Samira Ahmed is reportedly due to receive six years' worth of back pay following her claim (if raised in Scotland, it would have been limited to five years).
It is therefore important to have a clear and transparent process for determining pay (in which decisions are unrelated to sex); and keep accurate records of how salaries are fixed or graded among employees performing equal work.
For roles in which pay is negotiated, employers should tread with caution when considering the pay of former employees in the same role. It may not be clear whether former negotiations entailed a discriminatory element.
If you would like to discuss anything raised in this blog, please get in touch with your usual Brodies contact.
Workbox by Brodies users can find more information on equal pay claims here.
With thanks to Mikey Brown for his assistance with this blog during his recent student placement with Brodies LLP.
Contributor
Trainee
