This week’s case of the week is Samira Ahmed v the BBC. The case is an excellent answer to the following question:
How are Equal Pay cases determined?
An Equal Pay claim is a claim that an equality clause in a contract has not been adhered to. Every contract of employment has an implied equality clause under section 66 of the Equality Act 2010. The equality term entitles equal pay for men and women doing like work or work of equal value or work rated as equivalent. If that equality clause has not been adhered to then the Employment Tribunal can modify the contract to insert the equality clause.
The first step for the Employment Tribunal is to establish whether the claim and the claimant have an appropriate comparator. Most claims are brought by women. There is a gender pay gap of around 18%. Female claimants must have a male comparator who is doing either like work or work of equal value. The comparator must be being paid more.
In this case, Samira Ahmed brought an equal pay claim against the BBC claiming like work. The claim concerned her pay for presenting Newswatch. Newswatch summarises viewers’ responses to what’s on BBC news. The programme was devised following the Hutton enquiry. Samira was paid £427.50 per episode.
Samira’s comparator was Jeremy Vine. Jeremy Vine presented Points of View. Points of View is a programme that covers viewers’ opinions of BBC shows. Mr Vine was paid £3000 per episode.
Both programmes fall into the Factual genre. The BBC did try and argue that Points of View was in the entertainment genre but that was rejected.
The Employment Tribunal found that the Claimant was doing like work as Jeremy Vine. In that, both Newswatch and Points of View were 15 minutes long. Both aired viewers’ points of view. Both required a similar level of input from the presenters, namely reading a pre-prepared script from the auto-cue.
Once like work is established then the presumption is that the Claimant has the benefit of an equality clause and is entitled to equal pay. Employers should read paragraph 154, which is a model of clarity in explaining how the law works in relation to presumption and burden of proof.
The second step is for the Employment Tribunal to find whether the statutory presumption was rebutted by the BBC. The BBC can rebut the presumption by showing that there are genuine material factors other than sex to explain all or part of the difference in pay. Section 69 of the Equality Act 2010 sets out the defence of genuine material factor.
Here the BBC was on slightly stronger ground. The BBC principally argued that there were market forces at work. The BBC said that those market forces explained the difference in pay. A Ray Snoddy had previously presented Newswatch. Mr Snoddy had no previous broadcasting experience being a newspaper editor. He was however paid £400 per episode.
Points of View had previously been presented by Anne Robinson who had been paid over a £1000 per episode.
However, the BBC did not call the manager who had led the negotiation with Jeremy Vine which paid him £3000 00 per episode. The BBC’s argument was that market forces dictated that rate. The Employment Tribunal noted though that at the point of negotiation Mr Vine had signed a 3-year exclusivity contract which prevented him from joining a competitor.
The BBC also argued that Points of View needed a higher profile presenter and Jeremy Vine with his “cheeky chap” persona, and “glint in his eye,” fitted the bill. The Employment Tribunal disagreed. Any humour came from the script rather than the presenter. Having a glint in your eye is not a trainable skill.
Lastly, the BBC argued that any difference in pay arose because of differences in the contract. The Employment Tribunal noted that both presenters were initially on contractors’ contracts but were put on PAYE in 2018. The Employment Tribunal rejected that as an explanation.
The third step for the Employment Tribunal if they reject any genuine material factor defence is to make a declaration as to how long there should have been an equality clause in Samira’s contract.
The Employment Tribunal found that there should have been a sex equality clause in Samira Ahmed’s contract entitling equality in terms of pay with Jeremy Vine’s contract between 2012 and 2018, some 6 years.
In answer to the question the Employment Tribunal determines equal pay claims by:
- Finding whether the claimant and the comparator are doing like work or work of equal value.
- If they are not, the claim fails.
- If they are, the presumption is that the Claimant is entitled to equal pay.
- The employer can rebut the presumption by establishing that there are genuine material factors, other than sex, to explain the difference in pay.
- If the Employment Tribunal finds that there are genuine material factors other than sex then the claim fails.
- If Employment Tribunal finds that there are no genuine material factors then the claim succeeds and the Employment Tribunal makes a declaration of the length of time that the equality clause was not adhered to.
A number of interesting features about this case are:
- Samira Ahmed for the bulk of her period of employment was a contractor, as was her comparator, Jeremy Vine. The Employment Tribunal must have accepted that she was in the wider definition of employment under the Equality Act 2010 and that equality clauses applied to contractors’ contracts.
- The internal grievance procedure of the BBC including an appeal did not work as it supported management’s position rather than the employee. A robust grievance procedure could have rectified this issue earlier and prevented huge costs being run-up, as well as adverse publicity. The BBC were assisted during the grievance procedure by Croner, part of Peninsula.
- PwC had conducted an internal investigation and in their report found ad hoc and discretionary pay-setting mechanisms in place. Many employers have ad hoc pay-setting mechanisms.