Ms Ahmed brought a claim under s.69 of the Equality Act 2010 after she found out that she was paid £440 per episode of Newswatch and Jeremy Vine was paid £3,000 per episode of Points of View. She argued that they were like work and therefore the only reason for the difference in pay could be sex.
Her claim was ultimately found in her favour by the Employment Tribunal.
The Equality Act 2010 provides that an employee is entitled to contractual terms as favourable as those of a comparator of the opposite gender in the same employment if they are employed on equal work (work rated as equivalent or work of equal value).
Material Factor Defences Against Equal Pay
A “material factor defence” can be used by an employer to justify differences in pay between employees of different genders. An equal pay claim will not succeed if the employer can successfully show that the difference is due to a material factor as opposed to gender. Examples of material factor defences include performance, length of service, skills and qualifications.
The Tribunal firstly had to consider whether Ms Ahmed and Mr Vine were carrying out equal work, before they could consider the material factor defence, and they found that ‘equal work’ was apparent here. Both programmes were pre-recorded ‘magazine’ format shows lasting 15 minutes which discussed viewers’ opinions. There were differences between the shows, but the Tribunal found these to be minimal.
The BBC put forward various arguments as material factor defences in order to try and justify the difference in pay, including:
- The profiles of both the programmes and the presenters
- The differences in market rates and pressures
- Factual presenters were paid more than those in News
- Ms Ahmed was paid the same as her male predecessor
- A higher rate of pay was required to secure Mr Vine’s services
All of the above arguments failed.
Why Were the BBC’s Material Factor Defences Rejected?
The Tribunal found that the presenters’ profiles (reflected in their audience recognition score) were insignificant as the recognition research had only been carried out after relevant pay decisions were taken.
It also stated that market rates must mean the same in both cases, applying to either the role or the person. The BBC had paid Jeremy Vine what it believed necessary to get him to present Points of View, but the focus on Ms Ahmed was the market rate for the role.
There was no evidence that factual presenters were traditionally paid more than those in News.
In terms of Ms Ahmed’s predecessor, it was found that he lacked broadcast experience, whilst Ms Ahmed was an experienced broadcaster, therefore indicating that her profile had clearly not been taken into account when determining her pay.
The high rate of pay paid to Mr Vine could not have been simply to retain him, as he had signed a deal to work exclusively for the BBC, therefore there was no risk of him working elsewhere.
The Tribunal also rejected the BBC’s assertion that the presenter needed to have a “glint in the eye”. The script was written by the producer and therefore the presenter did not need to have any particular skill or experience.
The key problem for the BBC was that it had difficulty in providing clear evidence to explain the “striking” disparity. They were unable to provide a first-hand account of how Mr Vine’s rate had been decided due to personnel having left, which the Tribunal accepted. However, it was pointed out that a problem of this nature is easily solved if an organisation has transparent pay structures and keeps records of the rationale for such decisions. The BBC could not provide either.
Therefore, Ms. Ahmed’s case was found in her favour, until 1 October 2018. After this date, she moved onto a permanent staff contract which explained the difference in pay. She could now be awarded up to £700,000 in back pay.
How to Avoid Equal Pay Claims
This case does not change anything in relation to equal pay legislation, however what it does show is that employers should document pay structures and rationale to ensure that any differences in pay can be justified and evidenced.
Employers should not just focus on pay disparity going forward. They should also pay attention to any historical pay issues. It was clear from this case that the BBC had undertaken equal pay audits and job banding reviews. Its 2019 Annual Gender Pay Report showed that the median gender pay gap had reduced from 9.3% in 2017 to 6.7% in 2019 and it is intending to close the gap by 2020. However, as the case demonstrates, it failed to consider any pay disparity that had occurred prior to this.
The pay disparity was a relic of individual pay decisions taken between 2008 and 2012, with the reasons behind such decisions having been lost over time. Unfortunately, this is not a defence under the Equality Act 2010, which requires evidenced and objective reasons for any differences in pay.