You can’t defend an equal pay claim with assumptions and assertions

In a judgment released today, Samira Ahmed has won her equal pay claim against the BBC. Her fee for presenting Newswatch was more than six times lower than Jeremy Vine’s fee for presenting Points Of View.

The BBC tried to rely on the fact that Points Of View has a light-hearted tone and requires a certain “glint in the eye” but the tribunal raised more than an eyebrow at this, asking: “How does one acquire such a skill?” It noted that both presenters read scripts from an autocue and found that Jeremy Vine read the script “in the tone in which it was written. If it told him to roll his eyes, he did. It did not require any particular skill or experience to do that.”

The BBC did not appear to put forward any factual case as to why Points of View presenters should be paid more, other than referring to it being long-standing and having had high-profile presenters in the past. On the facts, during Samira Ahmed’s tenure the viewing figures for Newswatch overtook the figures for Points Of View.

The employment tribunal found that the work of presenting the two programmes is the same or broadly similar and that any differences that exist are not of practical importance, meaning that it is “like work” as defined in equal pay law.

If a man and woman are doing like work and are not being paid equally, it is for the employer to prove that the reason for the difference in pay is not due to the difference in gender.

The BBC did not persuade the tribunal that it had even put its mind to the reason why Jeremy Vine was paid £3,000 per episode. The BBC will now have to pay Samira Ahmed the shortfall in pay for 2012 to 2018, which will amount to a six-figure sum.

While the BBC may well appeal, it is important to understand that appeals do not rehear the witness evidence or make fresh findings of fact, unless the original findings of fact were perverse.

The lesson from this case is that making pay decisions without scrutiny or an objective basis is highly risky. For advice and guidance in this area, please contact our employment team.