Samira Ahmed, a female television presenter, has won her equal pay claim against her employer, the BBC. Although the case contains no legal developments in this area, the decision highlights the still significant issue of equal pay in the workplace and the possibility of triggering claims.
- The Law
The ‘equality of terms’ provisions contained in the Equality Act 2010 set out the law on equal pay and implements the principle that men and women should receive equal pay for equal work. This is achieved through implying a ‘sex equality clause’ into a woman’s contract of employment, providing the benefit of more favourable terms enjoyed by a man in the same employment doing equal work, unless the difference is due to a non-discriminatory ‘material factor’.
The Claimant presented the Newswatch programme from 2012 onwards and was paid £440 per episode by the BBC. She brought a claim for equal pay after discovering that Jeremy Vine, who presented Points of View, was paid a significantly higher amount of £3,000 per episode. The Claimant argued that her work was equal to that of a male presenter and that the sex equality clause was engaged, as the terms of her contract were less favourable than the terms enjoyed by a man in the same employment doing equal work.
The BBC relied on 6 factors to defend the difference in pay. These factors included the profile of the presenters and the programmes, the market rate payable and market pressures for the different presenters as well as the differences in their contract.
The Employment Tribunal rejected the BBC’s arguments and held that the work of both presenters were the same or very similar with only minor differences, which had no impact on the work that the presenters did or the skills and experience required to present the programmes.
As the Claimant had proved that her work was like that of a male comparator and that she was paid less than he was, the burden then shifted to the BBC to prove that the difference in pay was caused by some factor other than the difference in sex. The ET held that there was no evidence that the Respondent had taken into account profile, audience recognition or experience factors when it decided the presenters pay and therefore the difference was not because of any of the factors upon which it relied. As the respondent has failed to rebut the presumption of sex discrimination, the sex equality clause applies.
- Implications for Employers
The key message in the case is that employers should be able, at all times, to justify any pay differences for genuine reasons, other than the difference in sex. This is likely to mean reviewing pay rates when they are awarded and on a rolling basis, as well as recording any evidence of reasons for any differentials. The decision emphasises that employers will be held to account for any disparity in pay that cannot be justified between employees doing the same work.
The Claimant in this case could be awarded up to £700,000 in compensation, highlighting that non transparent pay structures and processes in determining pay can also be very expensive for employers.