In the news… BBC gender pay gap
Could we really see legal claims following the recent publication of BBC salaries? Ian Machray explains the law behind the headlines.
The BBC’s publication of its stars’ salaries has resulted in widespread speculation that it could now face sex discrimination or equal pay claims as a result.
But how likely are we to see Clare Balding (£150,000 – £199,999) bring a claim seeking equal pay with Gary Lineker (£1,750,000 – £1,799,999) or Fiona Bruce seeking a pay rise of around £200,000 to obtain parity with Huw Edwards?
Any employee, whether a celebrity or not, can bring a claim that they are entitled to the same pay as a male or female comparator if they are carrying out:
- “Like work” – The same or broadly similar work, where any differences are not of practical importance;
- “Work rated as equivalent” – This normally only applies where an employer has already carried out a formal job evaluation scheme (JES);
- “Work of an equal value” – Work which is equal “in terms of the demands made” by reference to factors such as effort, skill and decision-making.
On the assumption that the BBC has not already carried out a JES for its highest-paid stars, any equal pay claim would have to rest on an employee claiming that they carried out “like work” or “work of an equal value”.
It is important to note that jobs as wide-ranging as Classroom Assistants and Gravediggers have been matched as being of equal value in the past. Accordingly, differences between the type of TV show and/or the subject or sport covered may not automatically be sufficient to defeat a claim and a tribunal would most likely require an independent expert to help it determine the case.
The BBC would have a defence to an equal pay claim if it can establish that the difference in pay is due to a material factor which is neither directly nor indirectly sex discriminatory. This could include:
- Past performance
- Seniority/length of service
- Differences in the work
- Different hours of work
- Geographical reasons
- Market forces and skills shortages
Information about most of these factors is currently unknown as we only have the bare figures. The BBC has sadly failed to release Gary Lineker’s past performance reviews and we also don’t have basic details about hours and place of work and whether there are any non-public facing duties (such as directorial responsibilities).
Whilst the BBC will no doubt seek to avoid any public dispute or litigation with the named stars, lesser paid employees (and their representatives) will no doubt have viewed the disclosure with interest and could well seek to take action if the disparities are widespread across the organisation.
Lessons for other employers
While most employers will be grateful they don’t have to publicly disclose their salary information, it is important to realise that pay information can be released in other ways.
It is also often mistakenly assumed that employees must keep their pay confidential, but this is not the case unless there is an express confidentiality clause in the employment contract. Even if such a clause is included it will not prevent any disclosures necessary for the purposes of supporting an equal pay claim.
Employers should accordingly be very careful about any discrepancies between the pay for their male and female members of staff and ensure that they have clear objective rationale for their pay structure.
