In an expensive loss for the BBC, an Employment Tribunal has ruled that it breached equal pay law by paying Samira Ahmed substantially less for presenting Newswatch than it paid Jeremy Vine for presenting Points of View. Ms Ahmed has claimed around £700,000 in back pay (and might make an application for a contribution towards her legal costs).
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. In relation to whether the work was sufficiently similar, it was clear 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. So the work was 'like work'.
As to whether there was a 'genuine material factor' accounting for the difference in pay, the BBC seems to have struggled to put forward any clear evidence of the factors taken into account when setting the presenters' respective pay. There was a glaring lack of documentation setting out how factors like their public profile, market value and audience recognition had been taken into account at the time. The BBC therefore could not establish that there was a fair, non-discriminatory reason for the differential - so it lost the case.
What the case really demonstrates is the danger of relying only or mainly on negotiation as a way to set pay. Although this is common in many industries (particularly for senior hires/executives) and is common in SMEs, it creates a real risk of pay discrepancies which in turn expose the business to equal pay claims. It's far preferable to have a clear pay structure in place (or at least pay bands for key roles/levels) and to document any reasons for departing from them. It can also be useful to review pay arrangements as the business grows, to ensure that discrepancies are identified and corrected at an early stage. Equal pay claims can be backdated by 6 years (with interest) so it's not a good idea to let problems fester. The BBC (which has apparently approached other female employees in a recent effort to settle potential equal pay claims) seems to be learning this lesson a little too late.