The importance of documenting pay decisions in equal pay claims

Background

In 1990, Ms Ahmed joined the BBC as a graduate on their News Trainee Scheme. She continued to gain experience with the BBC, then moved onto Deutsche Welle TV, Channel 4 news and also featured on popular entertainment shows. In 2011, Ms Ahmed returned to the BBC after securing several presenting roles and, in early 2012, she was appointed as the Newswatch presenter, with her official start date being 1 October 2012. Ms Ahmed was offered £440 per programme, similar to the amount her male predecessor was given, although he had no prior experience.

In October 2016, Ms Ahmed’s contract changed, which meant that her fees were reduced significantly per programme and she was not entitled to paid holiday. This contract continued on until 30 June 2018, when Ms Ahmed raised concerns with her managers and Gavin Allen, BBC Senior News Controller. She requested a salary review and a comparison on equal pay with Jeremy Vine, who she had identified as an appropriate male comparator; however, was unsuccessful with her request.

Informal investigations were conducted into Ms Ahmed’s case, in which the BBC found that “where pay differentials existed they were not related to gender“. Ms Ahmed was not entitled to the same pay as Jeremy Vine, because “although Points of View shared some of the same subject matter as Newswatch, it was produced and presented in an entirely different way and had far more prominence“.

Ms Ahmed submitted a formal grievance on 15 August 2018, and requested backdated pay; however, the grievance was rejected. It has become apparent to the Employment Tribunal, that the grievance panel were given incorrect information and the process itself was flawed. Ms Ahmed appealed, but the panel upheld the decision and identified no procedural errors.

Ms Ahmed brought an Employment Tribunal claim on the grounds of unequal pay and less favourable terms in her contract when compared to male presenters, such as Jeremy Vine, doing the same or an equivalent role.

Employment Tribunal (ET)

The ET found that, whilst there were some minor differences in the programmes, the overall work of Ms Ahmed on Newswatch and Jeremy Vine on Points of View was the same or very similar under section 65(1) of the Equality Act 2010. As such, the ET did not need to consider whether their work was of ‘equal value’.

The burden of proof then shifted to the BBC who had to rebut the presumption that the pay difference was as a result of gender, by explaining their thought processes when determining pay. The ET considered the factors the BBC submitted, including the profile of the two programmes, the profile of the two presenters in terms of public profile and level of audience recognition, broadcasting range and experience, the market rates payable, market pressures and contract differences.

The ET held that the BBC did not have clear “pay structures or processes for determining pay and for recording the rationale of its decisions about levels of pay“. The BBC could not produce any documentary evidence outlining the reasoning behind the levels of pay between Ms Ahmed and Jeremy Vine. The rates of pay were set when they were appointed to their roles; Ms Ahmed was paid £440 per episode in 2012, whereas Jeremy Vine was paid £3000 per episode in 2008. The ET concluded that the BBC had failed to rebut the presumption and prove that the difference in pay was not as a result of sex discrimination.

As such, the sex equality clause within the Equality Act 2010 applied, which had the effect of modifying the terms of Ms Ahmed’s contract relating to pay, for presenting Newswatch between 1 October 2012 and 30 September 2018, to ensure that they were not less favourable than the terms of Jeremy Vine’s contract for presenting Points of View from 2008 to July 2018.

Comments

This case is an insight into the factors the Employment Tribunal consider in an equal pay claim and highlights the importance of having set rates of pay and documenting pay decisions.

This is a key decision in the fight to close the gender pay gap and will be a great help to those women still pursuing their claims, with Michelle Stanistreet of the National Union of Journalists stating that “Since the tribunal ended, the NUJ has pressed the BBC to resolve all of our outstanding cases, resulting in numerous positive outcomes, but there is still work to be done“.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.