Samira Ahmed’s successful equal pay claim against the BBC – lessons for employers

Why Samira Ahmed's equal pay claim against the BBC succeeded and where employers go wrong on equality legislation. 

10 January 2020

Samira Ahmed today won her high profile equal pay claim against the BBC at the employment tribunal. The presenter claimed she was underpaid for hosting the audience feedback show Newswatch when compared with Jeremy Vine's salary for Points of View. In terms of pay, Ahmed received £440 an episode, while Vine received over six times that, at £3,000 per show. The tribunal said this was not fair, and that it breached the Equality Act. But how do equal pay claims work?

For an equal pay claim to succeed, an employee has to show a number of things. Firstly, that they are employed in like work, work of equal value, or work rated as equivalent to a comparator. Here, Ahmed successfully argued that her job was similar enough to Vine’s to be regarded as “like” work.

Secondly, they must show that they have been employed on less favourable terms than a comparator of a different gender. Normally the less favourable term is rate of pay but it could be anything. As noted above, Ahmed’s pay was a fraction of that offered to Vine. It may sound obvious, but it is also essential to ensure that the comparator is of a different gender. There is no stand-alone right to “fair pay” so the protection is only triggered when there is a pay difference based on gender.

Even if the employee manages to establish these points, the employer can still successfully defend a claim if it can show that there is a material factor unconnected to gender that explains the difference. This is often a key battleground in equal pay claims, especially as employers are unlikely to intentionally pay people less because of their gender.  Here, the BBC looked at things like historic rates of pay in the roles, the relevant celebrity status and recognisability of the two hosts, and the fact that one show related to news and the other entertainment. The BBC argued that gender was not the reason for the pay difference. The tribunal disagreed and found that there was a connection.

Employers can often be caught out by ostensibly neutral reasons for a pay difference nonetheless being found to be tainted by gender discrimination. For example, the taint may arise when an employer tries to attract new talent by matching or exceeding existing salaries, without considering whether gender has played a part in setting that higher starting point. There is also a risk that statistically men may be more likely to negotiate a salary on recruitment or during employment, which can again contribute to a gap in pay. Often material factor defences overlap with the question of whether the roles are comparable in the first place.

Every employment contract has an invisible “equality clause” which is there from the start. It effectively says “if anything in this contract is less favourable because of gender then replace it with the more favourable term”. When an employee wins an equal pay claim, the tribunal is confirming that the equality clause kicked in from the contract start date or when the discrimination started, whichever is later. As such, there can be significant backdated pay awards.

The ruling is significant for Ahmed and others across the BBC. She will be entitled to backdated pay of up to six years from the date she raised her claim (the limitation period is five years in Scotland). The pay disparity should also be corrected going forward. While sometimes this is as simple as increasing the claimant’s pay, this is not the only approach. There could be a more comprehensive pay review that seeks to set a fairer pay structure going forward with some winners and some losers as a result. For the BBC, this may not be the last equal pay claim it receives as others could seek to pursue similar arguments buoyed by Ahmed’s success.