The Claim

Samira Ahmed brought an equal pay claim before the Tribunal against the BBC.

The law on equal pay is set out in the ‘equality of terms’ provisions of the Equality Act 2010 (EqA). The Act gives a right to equal pay between women and men for equal work, implying a sex equality clause automatically into all contracts of employment to ensure that a woman’s contractual terms are no less favourable than a man’s.

Ms Ahmed claimed that from October 2012 to date, her work as a presenter of Newswatch was equal to the work of Jeremy Vine as presenter of Points of View from 2008 to 2018. However, the BBC paid Ms Ahmed £440 per programme, whereas Mr Vine was paid £3,000.

As she was paid less than Mr Vine to do equal work, Ms Ahmed claimed that the sex equality clause was engaged, as the terms of her contract that were less favourable than those of Mr Vine’s contract and so they should be modified and her pay increased.

The Respondent’s defence  

The BBC’s defence was based on the following 5 factors:

• Differences between the profile of Newswatch and Points of View;
• Differences between the public profile/level of audience recognition of Ms Ahmed and Mr Vine;
• Differences between the market rate payable for Ms Ahmed and Mr Vine;
• Market pressure when Mr Vine negotiated his terms of pay, set in a context where a rival broadcaster had made an offer for his services;
• The types of contract that the two were engaged on.

In order to succeed, the BBC was required to prove that any factor relied upon did not treat Ms Ahmed less favourably because of her sex and that if it did, it was a proportionate means of achieving a legitimate aim. It was, therefore, for the BBC to prove that the difference in pay (£3,000 and £440) was because of a neutral factor other than the difference in gender.

Conclusions

Firstly, the Tribunal considered whether Ms Ahmed’s work on Newswatch and Mr Vine’s work on Points of View was ‘like work’ i.e. work that is the same or broadly similar. The Tribunal held that the differences between the two programmes were minor differences and had no impact on the work that the two presenters did, or the skills and experience required to present the programmes. In particular, the Tribunal held that it could not understand why a requirement for “a glint in the eye” or to be “cheeky” translated into a skill or experience to do a job, as argued by the BBC. The work was, therefore, deemed the same or very similar.

Once Ms Ahmed had established that her work on Newswatch was ‘like’ that of Mr Vine (a man) on Points of View and that she was paid less than him, the burden shifted to the BBC to prove that the difference in pay was not attributable to her sex.

In this case, as the difference in pay was so striking – with Mr Vine receiving more than 6 times what Ms Ahmed was paid for similar work – the Tribunal stated that there must be clear evidence about how the BBC determined the rate of pay.

The Tribunal held that the BBC did not have transparent pay structures or processes for determining pay and recording the rationale of its decisions about levels of pay and had no records of how the pay levels for the two individuals were determined.

There was no evidence that the profile of either the two programmes or the two presenters had been taken into account in determining level of pay. Conversely, the evidence indicated strongly that broadcasting and experience was not taken into account in setting the pay for presenters of Newswatch, as Ms Ahmed was paid the same as a colleague who had no broadcasting experience.

In relation to the difference in market-rate payable for the two individuals, in the context of this case, this meant the level of remuneration paid to someone presenting a programme like Points of View on a different TV channel. In relying on this, the Respondent said that it was doing so in circumstances where retaining high profile presenters was important to its strategic objectives, referring to “the very significant market power” that Mr Vine had. The Tribunal found that Points of View and Newswatch were unique to the BBC. Secondly, there was no clear evidence of what Terry Wogan, the previous presenter of Points of View had been paid. Having considered the evidence, the Tribunal were not persuaded that the BBC offered Mr Vine’s £3,000 per episode based on some evidence before them that this was the market rate payable. The evidence indicated the contrary – that Mr Vine was paid above the market rate.

The BBC further submitted that Ms Ahmed’s pay for Newswatch represented the market rate for her role. However, in her case, the focus was on the market rate for her role, rather than for her.  This was a different approach to the one taken for Mr Vine’s pay. In the absence of both roles being evaluated in the same way, the BBC was unable to prove that the decision-makers in each case had considered market rates for both individuals in concluding that Mr Vine should be paid £3,000 and Ms Ahmed £440 per programme. The Tribunal further held that market pressures when Mr Vine’s pay was set was not a justifiable reason.

It was held that rates of pay were effectively set when each presenter had first started presenting their respective programmes and thereafter, the status quo had been maintained and justified.

Judgment

The Tribunal held, unanimously, that the work done by Samira Ahmed and Jeremy Vine when presenting their respective programmes was equal. In respect of the five defence factors raised by the BBC, they did not evidence that any of them were the reason for the pay being set at the level at which it was. The BBC, therefore, failed to rebut the presumption and justify that the pay disparity was not on grounds of sex.

Accordingly, the claimant’s claim for equal pay with Jeremy Vine between May 2012 and 30 September 2018 succeeded in full.

What next?

This is a landmark ruling, which will hopefully encourage employers to ensure that they maintain transparent pay structures and processes for determining pay to achieve pay parity for all genders. Whilst there is still some way to go, the outcome of this case shows that employers will be held to account where they have an unacceptable disparity in pay between employees who are effectively doing the same job.