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What can we learn from Samira Ahmed’s successful equal pay claim against the BBC?

Associate Solicitor, Helen Scott

Supposedly all BBC staff pay is equal; however, some pay may be more equal than others. In recent years the BBC has faced criticism for the pay disparity between its male and female presenters, with published salaries showing the top 7 earners all being men and only a third out of the top 96 being women. Samira Ahmed’s successful claim that she had unlawfully been paid less per episode than male presenter, Jeremy Vine, (£3,000 and £440) marks a significant legal victory in this ongoing dispute and this may well give rise to further claims being brought by female presenters.

What is the legal position on equal pay?

Equality law implies a ‘sex equality clause’ into all employment contracts, which has the effect of modifying any term of someone’s contract that is less favourable than a ‘term of a similar kind’ in the contract of someone of the opposite gender, so that it is not less favourable. Should there have been a breach of this clause, such as where a man in a similar job is being paid more than a woman, then an equal pay claim can be brought.

In order to bring a claim, a person must be employed under a contract of service, apprenticeship or personally to do work, which means that the rules may apply to workers as well as employees. A person bringing a claim must then compare the terms of their contract to those of a selected comparator, or multiple comparators if they choose. Importantly, the comparator must be real and:

  • Of the opposite gender to the claimant;
  • A current or previous employee; and
  • Is working or has worked “in the same employment”.

A claimant must also establish that the comparator is, or has been, employed to do ‘like work’, which is the same or broadly similar as the claimant; work rated as equivalent, or work of equal value.

If a claimant is able to establish the above, then the respondent must demonstrate that the reason for this was due to a material factor that does not involve sex discrimination.

Why was this claim successful?

Samira Ahmed was able to demonstrate that her work on Newswatch was like Jeremy Vine’s on Points of View, in order to use him as a comparator. The Tribunal did not accept the BBC’s argument that the difference in pay was because of a material factor which did not involve subjecting Samira Ahmed to sex discrimination. The BBC had attempted to show that Points of View had a higher profile than Newswatch; that Jeremy Vine had a higher profile than Samira Ahmed; that he had a better broadcasting range and experience and that there were differences in market rates, and pressures which applied to them both.

The significant point in this case is the fact that the BBC’s attempt to justify the disparity in pay failed. This reasoning, which broadly boils down to ‘male stars are paid more because they’re more popular’, is likely to have been the justification of the BBC, and potentially other broadcasters, in the past for the higher wages of male presenters. Going forward, unless it can produce sufficient evidence, as it failed to do here, then the BBC is unlikely to be able to justify the salaries it has been paying its senior staff and presenters for years and there may now be many who are entitled to bring equal pay claims.

What’s next for equal pay and the gender pay gap?

In this case, Samira Ahmed was successful in claiming for a period of just under 6 years, from October 2012 to September 2018. The Tribunal has not yet made any award in respect of damages, but it is not difficult to imagine that £2,560 per episode over a period of 6 years is likely to be quite costly for the BBC. Should this decision encourage others in a similar position to bring equal pay claims, then the BBC will potentially be exposed to a huge unpaid wage bill. A recent example of this is radio presenter, Sarah Montague, who recently confirmed that she received a £400,000 settlement and an apology from the BBC last year in respect of the disparity in her pay and conditions compared to her co-presenters.

This decision also comes at a time when the World Economic Forum has reported that the UK has dropped six places in the global gender pay gap report and the same Forum has claimed that equal pay will not be achieved worldwide for 100 years. Cases like these suggest that the UK has some way to go in order to reduce the country’s gender pay gap. It is not clear yet whether the BBC will attempt to appeal the decision, but if the Tribunal system leaves the BBC without that option, perhaps they could always consider writing a letter to Points of View!

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