Samira Ahmed recently won an equal pay claim against the BBC, generating significant public interest and leaving the BBC vulnerable to many more future claims. Despite the current UK gender pay gap recorded as 17.3% , it is extremely difficult to successfully bring an equal pay claim. A gender pay gap in a company is by no means a guarantee of succeeding at tribunal. Alice Rowland looks at the case to understand how equal pay claims can be successful.
Ms Ahmed had to show that she carried out equal work to a male comparator who is in the same employment. Ms Ahmed, who was paid £440 an episode to host Newswatch, used Jeremy Vine, who was paid £3,000 an episode to host Points of View (“POV”) as her comparator.
As Newswatch focuses on news programmes, whilst POV considers both news and other programmes, the BBC unsuccessfully argued that the work was different. They claimed that POV was a ‘high-profile entertainment programme’ that required a ‘cheeky’ presenter with a ‘glint in the eye’.
The Tribunal disagreed and stated that the work carried out by the presenters was the same, or very similar. Both programmes:
- Lasted 15 minutes and were pre-recorded in a magazine format.
- Discussed viewers’ opinions on BBC programmes and neither presenter was obliged to watch the programmes being discussed.
- Had the content and script determined by the producer. Both presenters read the script from the autocue and any attempts at humour came from the script.
- Had similar working conditions and required similar activities and skills.
The burden was then on the BBC to prove that the £2,560 pay gap (over 85%) per programme was due to a non-discriminatory genuine material factor. The tribunal noted that for such a large pay gap, clear evidence was needed.
The BBC found no evidence that:
- audience figures;
- subject matter;
- channel and time of airing; or
- presenter profile;
was taken into account when setting pay. It also noted that the presenters’ pay probably would have been very different if these factors had been taken into account and the processes for determining presenter pay were opaque and inconsistent.
The BBC was unable to show that there was a non-discriminatory reason for the pay gap and Ms Ahmed’s claim succeeded. She now may be entitled to £700,000 in lost earnings.
Whilst equal pay claims are fact specific, this case does provide some important lessons about ensuring that individuals are paid at the correct level, irrespective of their gender. When setting pay, employers should ensure that there is an audit trail showing why the pay can be justified by reference to non-discriminatory factors. An individual’s pay should be considered in view of the work that they are doing and how this compares to their colleagues. Reasons of historical precedent or bargaining power should be regarded with care. Generally, being alive to the issue and having some level of transparency about how pay is calculated is a good first step to protect against these increasingly common claims.