21st January, 2020
Samira Ahmed wins equal pay claim against BBC.
Samira Ahmed has successfully argued that her pay of £440 per episode for presenting Newswatch should have been on a par with Jeremy Vine’s £3,000 per episode for his work on Points of View.
A London Central Employment Tribunal panel unanimously concluded that the BBC had failed to produce compelling evidence that the two presenters’ work was not alike. Under the Equality Act 2010 (“EqA”) employers must offer employees equal terms, including pay, for the equal work regardless of sex.
The BBC’s key argument was that Jeremy Vine and Samira Ahmed did not do the same work and particularly that Points of View required a “cheeky” presenter with a “glint in the eye”. Unfortunately for the broadcaster, the Tribunal judgment was damning of the argument that there was any significant differences between the roles, saying “Jeremy Vine read the script from the autocue. He read it in the tone in which it was written. If it told him to roll his eyes, he did. It did not require any particular skill or experience to do that”.
Having established that they carried out the same work the Tribunal considered the BBC had “failed to rebut the presumption of sex discrimination that arose when she (Ahmed) proved that her work was like his work and that she was paid less than him”.
The BBC was also unable to establish that there was any “material factor” which may have justified a difference in pay, which did not involve subjecting Ms Ahmed to sex discrimination.
Ahmed’s claim was for approximately £700,000 of back pay, which will be decided at a separate remedy hearing in due course or, perhaps more likely in the circumstances, by agreement between the parties.
Media outlets are reporting that this is only the first of a number of similar cases against the BBC by other female staff that could cost the Corporation millions, along with the reputational damage and public embarrassment inherent in such a judgment.
What does this mean for employers?
To some extent, the BBC is a special case and was forced to publish a list revealing the salary details of its top earners at the behest of the government under the BBC’s new royal charter.
Nevertheless, gender pay gap reporting is mandatory for any “relevant employer”, which is a private or voluntary sector employer with 250 or more employees. This requirement is for an average figure comparing male pay with female pay over the whole of the workforce and therefore does not reveal whether roles are “alike”, as was key in Ms Ahmed’s case.
The objective of the pay gap reporting regulations is to get employers thinking about how thy can narrow a gap in pay between male and female employees, but a report showing a large gap could clearly raise alarm bells and spark off claims by underpaid female staff under the EqA.
Review your gender pay gap. Acas are encouraging employers to go beyond the Gender Pay Gap Regulations and implement an action plan to reduce the gap.
Where there is a difference in pay between male and female staff, assess whether there are specific roles where staff are carrying out substantially equal work, but receiving unequal pay. This is where a claim might reasonably arise.
Harmonisation of pay. Consider: what is more costly for your business, increasing rates of pay for female staff to equalise pay, or running the risk of claims. More importantly, do you want to risk the reputational harm of being accused of unequal treatment of your employees?
The glass ceiling: even where employees doing the same work are getting the same pay, the pay gap reporting requirements may show that female staff are less likely to be employed in the higher quartiles. It may be worth reviewing why this is in your organisation. For example, is there a lack of support for female employees with children, is there a lack of flexible working options?
We would recommend employers treat the Gender Pay Gap Regulations as a pro-active opportunity to review these issues within the organisation and address any actual or perceived inequality, so that you do not fall foul of the EqA.
If you or your HR department require advice in relation to the Equality Act 2010 or Pay Gap Reporting, or any other areas of Employment law, please do not hesitate to get in contact with us at Aaron and Partners LLP.
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