A lot of publicity has been given to the Employment Tribunal decision in the claim by Samira Ahmed against the BBC. For those who have somehow missed the detail, she used the equal pay legislation to claim that she was discriminated against on the grounds of her gender when paid £440 per episode of Newswatch when Jeremy Vine was paid £3,000 per episode in relation to presenting Points of View.
The decision in Samira’s favour has been made by an Employment Tribunal and not a Higher Tribunal. As such it is not binding on other Tribunals. As is usually the case the detail of the ruling is more complex than the headlines. In short, it appears that the BBC lost
because it had to prove that the differential was not based on sex and having not sat down and done a detailed analysis of why it was paying what to whom, at the time of offering the role and undertaking appropriate comparisons, the Tribunal didn’t believe that it had proved its case. This went back as far as 2008.
The Tribunal was satisfied that following a more recent and thorough review the BBC was in a position to justify the pay levels in more recent times. There is a massive debate that can be had around this and a significant proportion of employers are in reality vulnerable to equal pay claims.
The legislation works in a complicated way and has little regard for the nuances of recruitment on the ground. Perhaps the biggest lesson coming out of this for employers is that in relation to each appointment they needed to very carefully rationalise what they are paying and why and in doing so, compare the salary levels to those doing similar jobs.
However, it would be wrong to say that this is a straightforward exercise. The legislation applies not only to those doing the same jobs, but also work rated as equivalent and work of equal value. In practice, this has created a great source of income for lawyers and experts undertaking comparison exercises but has caused significant difficulties for various employers including local authorities. For example, the finding that local authority cleaners should be paid the same as refuse collectors caused severe financial problems to many local authorities.
Most major supermarkets are now on the hook as those working in-store who are predominantly female are arguing that they should receive the same pay rates as those who work in warehouse operations who are predominantly male. A Supreme Court hearing in relation to ASDA employees is due to take place in the Spring. The claims themselves are complex and therefore cost a lot to fight. A simplification and application of common sense wouldn’t go amiss!