Are Some More Equal than Others?

Whilst historically public sector employers were the focus for equal pay claims, private sector employers are increasingly finding themselves in Tribunal – and the news.

In recent months the BBC has not only written, but also made, the headlines in relation to equal pay. Gracie, former BBC China editor, who reportedly earned £135,000 per year, said she refused a £45,000 rise as she would still earn considerably less than her male counterparts. Up to 200 women at various levels of the BBC have made complaints about pay, according to #BBCWomen, a campaign group of around 150 broadcasters and producers.

The Equality and Human Rights Commission (EHRC) has said it will write to the BBC to investigate Gracie’s allegations and will consider whether further action is required based on the BBC’s response. If, following an investigation, the EHRC concludes that an employer has committed an unlawful act (for example, discrimination or breach of equal pay) it can serve a notice, requiring the employer to prepare an action plan to avoid any repetition, or continuance, of the unlawful act – and can enforce the plan by way of court proceedings.

Claims to a court or tribunal can result in a declaration of the claimant's rights, require payment of arrears usually going back up to six years or damages, and/or order the employer to carry out an equal pay audit.

While BBC employees are likely to have a bigger platform than most, the reputational risk associated with equal pay and other discrimination claims affects all employers. Tesco is now reportedly facing a £4bn equal pay claim. Another private sector employer, Asda, will be in the Court of Appeal later this year in relation to its predominantly female group of supermarket employees, who the Employment Appeal Tribunal held can compare themselves against a predominantly male group of distribution depot employees.

The potential repercussions, both for Asda, where the cost could reportedly be as much as £100m, and more widely, are significant.

Employers should be aware that, in publishing their gender pay gap reports, pay disparity may come to the fore, and companies should consider what steps they can take to pro-actively manage potential risks.