Equal pay is often – wrongly – thought of as a public sector issue. A string of cases about dinner ladies, refuse collectors and council staff gave the impression private sector employers don't really have to worry about it. But the ongoing mass equal pay claims against Tesco and ASDA make it very clear that the private sector can't afford complacency –and Samira Ahmed's successful recent claim against the BBC shows that equal pay is just as relevant to high-paid executives and creatives as it is to checkout staff.
Samira Ahmed presents Newswatch. She brought an equal pay claim asserting that she should have received the same pay that Jeremy Vine received for presenting Points of View. He received £3,000 per episode between 2008 and 2018, compared with her £440.
The BBC sought to defend the difference in two key ways: first by arguing that the work involved in presenting the programmes wasn't 'like work' or 'work of equal value'; second by arguing that there was a 'genuine material factor' not related to sex which accounted for the difference in pay. The Employment Tribunal gave both of these arguments short shrift. It held that the time commitment, nature of the work and skills involved were very similar. The Tribunal wasn't impressed by the argument that Points of View required a 'glint in the eye' of the presenter and a different tone - it commented that if that was true, it was the result of the script written by the producer.
The next question was whether there was a 'genuine material factor' explaining the difference in pay. The BBC failed to put forward any clear evidence of the factors taken into account when setting the presenters' respective pay. There was a glaring lack of contemporaneous evidence about how factors such as public profile, market value and audience recognition had been taken into account at the time. This lack of evidence resulted in the BBC losing the case.
The case illustrates the danger of relying on negotiation as a way to set pay. This is a particular issue for executive hires (especially in non-quoted/traded companies which aren't required to have a formal remuneration policy). Contrary to popular belief, the fact that a male hire insisted on a higher salary than his female equivalent isn't enough to defend an equal pay claim. Although market forces can justify a pay differential, it's essential to document the rationale carefully - as the BBC found to its cost – and ensure that it's not a fig-leaf for discrimination.
Equal pay claims in the private sector are becoming more common, possibly because gender pay gap reporting has focused media attention on pay equality issues. Defending such claims is an expensive business – and losing them even more so. Ms Ahmed's compensation will likely run into hundreds of thousands of pounds – and her case is one of many affecting the BBC. Businesses should take heed and ensure that pay decisions are fair, transparent and properly documented at the time.