Legal Matters by Dax Keeling, commercial litigation solicitor at Bell & Buxton
Our columnist with a ‘welcome reminder’ of the importance of the equal pay principle
Equal pay in the workplace has been highlighted by the BBC and one of its frontline presenters.
Widely reported by the media, the case of Samira Ahmed -v- BBC is a welcome reminder both of the importance of the principle of equal pay in the workplace and, for employers, of the need to have genuine evidence available to justify a pay differential between male and female staff.
Enshrined in legislation for 50 years, the principle is that men and women should receive equal pay for equal work. They are entitled to contractual terms that are as favourable as those of a comparator of the opposite sex, in the same employment, if employed on equal work. This effectively implies a “sex equality clause” into contracts of employment.
There is a “material factor” defence available to employers if the difference in pay is due to a material factor that is not based on sex and is not discriminatory.
As is often the case in the law, individual cases tend to revolve around their own facts. Providing definitive advice is not straightforward. It is worth considering the Ahmed case to appreciate what you perhaps shouldn’t do as an employer if you hope to successfully defend an equal pay claim.
The case revolved around two BBC presenters, Samira Ahmed (presenter of Newswatch) and Jeremy Vine (former presenter of Points of View). Ms Ahmed brought an equal pay claim against the BBC; the facts which caught the attention of the media were that Ms Ahmed was paid £440.00 per episode of Newswatch, whilst Mr Vine was paid £3,000.00 per episode of Points of View. The claim was successful.
Based on the judgment of the Tribunal, it seems that much the same work had been carried out by Ms Ahmed and Mr Vine. The requirements for their respective roles appeared to be very similar.
It also appears that the BBC’s defence of the claim was based on an argument that market forces had dictated the basis on which the contracts with Ms Ahmed and Mr Vine were made. That can be a valid defence, but the Tribunal judgment pulled few punches. The BBC hadn’t disclosed convincing or reliable evidence regarding the historic pay for previous Points of View presenters (male and female) and hadn’t called satisfactory witness evidence regarding the negotiations over, and the valuation of, Mr Vine’s contract. In those circumstances, the outcome of the case is perhaps not surprising.
The lesson for employers is clear; if you pay male and female staff at different rates and think you are justified in doing so, make sure that you have good, solid evidence as to why that is, and document that evidence if at all possible.
