Earlier this month an employment tribunal upheld Samira Ahmed’s equal pay claim, based on a comparison of her pay with that of Jeremy Vine. Although the context was the relatively rarefied world of on-air talent at the BBC, employers of all types can draw lessons from this dispute.
As the tribunal explains, the story starts when the BBC was compelled by its new charter to publish annually details of the remuneration of its most highly paid on-air talent. The first list was published in 2017. As well as generating a lot of comment in the media, it also resulted in a number of internal grievances, including one brought by Ms Ahmed. That was rejected by the BBC, so she brought proceedings in the employment tribunal.
She compared her pay for presenting Newswatch (initially £440 per episode) with the £3000 per episode that Jeremy Vine received for Points of View. After looking in detail at the nature of the programmes, and the work and skills involved in presenting each episode, the tribunal decided that Ms Ahmed and Mr Vine were performing “like work” – ie work that was the same or broadly similar. The burden of proof therefore moved to the BBC to establish that the difference in pay was due to a “material factor” which had nothing to do with the claimant's sex. If that defence is rejected, an employer is obliged to level up the pay differential (through the mechanism of the “equality clause” implied into every contract of employment).
The problem the BBC faced was that the levels of pay were effectively set when Mr Vine and Ms Ahmed were appointed to present their programmes. That was back in 2008 and 2012 respectively. The passage of time may have been one reason why the BBC was unable to present any compelling evidence of how those pay decisions had been reached. As the employment tribunal put it:
“The BBC found itself in difficulties in this case because it did not (and, to an extent, still does not) have a transparent and consistent process for evaluating and determining pay for its on-air talent. It has no records (or, if it has them, it has not produced them) of how the pay levels for the claimant and Jeremy Vine were determined.”
As an employment tribunal ruling, this decision is not binding and may be subject to appeal. But it is an interesting case study for all employers – all the more compelling because both claimant and comparator are well-known public figures – of the dangers of operating outside a defined pay structure. That is often what happens with appointments to the most senior positions in an organisation, even if there is a defined pay structure for other staff.