Samira Ahmed last week won her high profile equal pay claim against the BBC.
The recent successful equal pay claim by Samira Ahmed v BBC has highlighted two extremely important and relevant points and as a HR professional, it is key that your policies and procedures are watertight.
When making decisions on pay it is fundamental that you record your rationale and you must have a transparent and consistent process for evaluating and determining pay for staff. Below we take a brief look at what the BBC didn’t do…
As with all claims for equal pay discrimination, the claim required a comparator of the opposite sex in order to succeed. In this instance, the comparator relied on was Jeremy Vine. The comparison was about two shows they presented, Newswatch and Points of View, and the different fees they received for presenting those shows. Samira Ahmed has been the presenter of Newswatch since September 2012, and received £440 per episode. Jeremy Vine presented Points of View between April 2008 and July 2018, and was paid £3,000 per episode.
The two shows were both topical review shows, with Newswatch focused on recent news coverage by the BBC. Newswatch lasts 15 minutes, and generally had viewing figures in the region of 1.5 million for the relevant period. Points of View is a general review of all BBC programmes and lasts for 15 minutes. For the period from 2013 to 2018, viewing figures were around the 1 million mark for Points of View.
As with all equal pay claims, the obligation fell on the BBC, as the employer, to prove that the difference in pay (if the work was ‘like work’) was due to a neutral factor or factors not related to gender (‘the material defence’). The neutral factors relied on by the BBC, included: the profile of the two shows; the difference in the profile of the two presenters; their broadcasting experience; an alleged difference in market rates for their respective positions; and market pressures.
It is important to note that, if an employer fails to prove that the factors relied on upon its defence were the reason for the difference in pay in defending an equal pay claim, the claimant will succeed. The claimant in an equal pay case does not need to prove that the difference in pay was due to the difference in gender, and it is not the role of an employment tribunal to speculate on whether some factor, other than the ones put forward by the respondent, might have been the cause of the disparity in pay.
The employment tribunal, in this case, found that the work constituted ‘like work’, pointing to the viewing figures, working time and the nature of the activities. It was noted that the pay differential here was striking, in that Vine was paid six times more than Ahmed for doing substantially the same work as her. The employment tribunal held that the differences between the two programmes were minor differences and had no impact on the work that the two presenters did, or the skills and experience required to present the shows.
The employment tribunal also held that the BBC had failed to properly explain and justify the difference in pay at any stage, and had therefore failed in its material defence. The rates of pay had been set when the employees started their roles and had not been updated since. The respondent could not point to clear evidence that the factors relied on for the purpose of its material defence were considered at the point of entering the employment contracts, or since that stage. The tribunal concluded that the BBC ‘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’. This had precluded the BBC from pointing to a clear and reasonable rationale for the decisions relating to pay. This lack of a recorded rationale was particularly important in terms of audience recognition, which the BBC had said helped to explain the difference in pay. The BBC could not provide evidence that audience recognition information relating to the two presenters was known to the decision-makers who set the respective pay levels, and the existence of such information (demonstrating the higher audience recognition, i.e. the higher profile, of Jeremy Vine compared to Samira Ahmed) therefore did not change this position.
The decision is a first instance tribunal decision, and so is open to appeal, but represents a striking rejection of the BBC’s defence. As such, given the very limited scope for the appeal of employment tribunal decisions, it is difficult to see how a successful appeal could be launched (if indeed there is an appetite from the BBC to appeal).