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Paid and Displayed: Is the BBC at risk of Discrimination Lawsuits?

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About The Author

Keir Baker (Former Editor in Chief)

Keir is a Trainee Solicitor currently in the fourth and final seat of his training contract at a major US law firm. He is a law graduate from Selwyn College, University of Cambridge. Outside the law, Keir is an accomplished goalkeeper in both football and hockey, as well as a keen actor and pianist. He is a long-suffering supporter of Middlesbrough FC.

The BBC can be infuriating at times but I love it with a passion.

John Sweeney

For the first time in its history, the BBC has released into the public domain the earnings of its top-paid stars. As was required under the terms of its controversial new Royal Charter, the annex to the corporation’s annual report for 2016/2017 outlined the pay received by its 96 highest earning 'talents'.

Though some criticism has been directed towards the sheer size of the salaries paid to individuals like Gary Lineker and Chris Evans, much of the outcry generated has been focused on the pay gap between the genders: the report shows that two-thirds of the 96 BBC stars earning more than £150,000 are male. It seems clear, therefore, that the corporation has much to do to resolve its gender pay gap.

Indeed, there is a very real risk that the BBC could become embroiled in a pay discrimination lawsuit. In the view of Chair of the Women and Equalities Select Committee, Maria Miller MP, it is ‘incredibly unclear how the BBC is going to avoid getting into some very difficult legal positions with some of the people they employ.’ With this is mind, this article examines the likelihood of success of such a claim against the BBC in the event that one of its female stars sought to use these figures as the basis for a challenge.

What is Pay?

The statute governing equal pay claims is the Equality Act 2010 (EqA 2010), Section 80(2) of which holds that the definition of ‘pay’ is broadly construed, applying to ‘the terms of the person's employment’. Therefore, a claimant may be able to bring an equal claim for issues other than just their salary, including their contractual sick pay, redundancy pay and unfair dismissal compensation.

Establishing a Comparator

The first step for a claimant wishing to show that their employer is breaching their equal pay duties is outlined in Section 64(1)(a) of the EqA 2010, which requires a claimant to show that they ‘are employed on work that is equal to the work that a comparator of the opposite sex does.’ Taken together, Section 64 and Section 79 of the EqA 2010 hold that a person fulfils the role of the requisite comparator when they are:

  • Of the opposite sex to the claimant
  • A current or previous employee (they cannot be hypothetical)
  • Working in the same employment (employed by the same, or an associate, employer)
  • Performing 'equal' work to the claimant

Performing Equal Work to the Claimant

Section 65(1) of the EqA 2010 outlines three ways by which a claimant can show they are performing work that is 'equal' to that of the comparator.

‘Like’ Work

Section 65(2)(3) of the EqA 2010 holds that a claimant’s work is like the work of the chosen comparator when their work is:

The same or broadly similar, and [any] differences... between their work are not of practical importance in relation to the terms of their work.

It is [therefore] necessary to have regard to the frequency with which differences between their work occur in practice, and the nature and extent of the differences.

Given the inquiry examines whether the differences between the work performed are of practical importance, the focus is on the work actually undertaken rather than that expected by the terms of the contract.

‘Rated as Equivalent’ Work

Section 65(4) of the EqA 2010 holds that a claimant’s work is rated as equivalent to the work of the chosen comparator if:

A job evaluation study gives an equal value to [the claimant]'s job and [the comparator]'s job in terms of the demands made on a worker.

It was held in O’Brien v Sim-Chem Ltd [1980] IRLR 373 that the employer is not obliged to carry out a job evaluation study but that where one has been carried out and unequal pay conditions have been identified, the employer must act to rectify the situation. Importantly, it was held in Redcar v Cleveland BC; Surtees v Middlesbrough BC [2008] that a job evaluation study is not retroactive, such that equal pay can only be demanded in terms of future, and not past, work done.

Work ‘of Equal Value’

Section 65(6) of the EqA 2010 holds that a claimant’s work is of equal value to the work of the chosen comparator if the work:

Is neither like [the comparator]'s work nor rated as equivalent to [the comparator]'s work, but nevertheless equal to [the comparator]'s work in terms of the demands made on [the claimant] by reference to factors such as effort, skill and decision-making.

This final category is often viewed as a last resort: it is the most complex to prove because it cannot be easily measured via quantitative data, instead relying on a more impressionistic inquiry about how and to what extent society values certain types of work. Typically, tribunals will refer this inquiry to an independent expert employed by the ACAS panel.

The BBC Context

For the female stars included in the report, there is nothing to suggest that there will be any difficulties establishing a comparator. All of the 96 stars listed in the recently published figures are employed by the BBC, thereby meeting the ‘working in the same employment’ criterion.

Meanwhile, there are a myriad of individuals that could be considered to be performing equal work to each other: by way of an example, for newsreaders like Fiona Bruce or Reeta Chakrabarti, Huw Edwards would clearly fall under the ‘like’ work category while presenters of current affairs programmes like Andrew Marr or John Humphrys may arguably be considered to be performing work of ‘equal value’.

Usefully for many potential claimants, it was held in Pickstone v Freemans plc [1988] they are not prevented from making a claim for ‘equal value’ with one comparator merely because there is another comparator employed on work that is ‘like’ theirs. Therefore, even though there may be another male newsreader like Clive Myrie receiving similar pay to Fiona Bruce, she is not precluded from advancing her claim by reference to Huw Edwards.

The Genuine Material Factor Defence

Once a claimant has successfully identified an appropriate comparator, it falls on the employer to provide a factual explanation for the pay discrepancy if they wish to defend their position. They must show that – on the balance of probabilities – the reason they are paying the comparator more is a ‘material factor’ that is not directly or indirectly discriminatory and is a significant and relevant cause of the unequal pay conditions.

Section 69 of the EqA 2010 holds that the material factor must:

[Not] involve treating [the claimant] less favourably because of [the claimant]'s sex [and be] a proportionate means of achieving a legitimate aim.

Material factors that involve treating the claimant less favourably than the comparator because of their sex are directly discriminatory and cannot operate as a defence at all. However, material factors that appear to be gender neutral but which have a gender taint – in that they cause one sex to be put at a particular disadvantage compared to the other – are considered indirectly discriminatory and so may still operate as a defence, so long as they can be objectively justified.

Gender-Tainted and Indirectly Discriminatory Factors

There are different ways in which an apparently acceptable factor could be shown to be indirectly discriminatory. For example, a bonus for working ‘anti-social hours’ might be held indirectly discriminatory because childcare responsibilities leave women less likely to be able to achieve it. An oft-cited case is Redcar v Cleveland BC; Surtees v Middlesbrough BC [2008] where the employer’s ‘pay protection’ measures – intended to provide ‘soft landing’ protection to male employees whose pay was being reduced as part of a transition to a fairer pay structure – was held to have a gender taint because it had the effect of perpetuating existing gender inequalities.

Where the claimant establishes that the factor relied upon is indirectly discriminatory, the employer will only be able to successfully defend the claim if it can provide an objectively justification for the unequal pay conditions. This can either be done by showing – as permitted in Section 69(1)(b) of the EqA 2010 – that the unequal pay is ‘a proportionate means of achieving a legitimate aim’ or by channelling the test outlined in Bilka-Kaufhaus GmbH v Weber von Hartz (1986): that the unequal pay conditions stem from a real need to achieve a particular legitimate objective, and that the measures are appropriate and are necessary to achieving it.

Potentially Acceptable Factors and Objective Justifications

The list of factors that have been accepted as having the potential to justify paying the comparator more than the claimant can be grouped into three categories.

Personal Factors

In Clay Cross (Quarry Services) Ltd v Fletcher [1978], Lord Denning MR held that wanting to reward the comparator’s length of service, superior skills or qualifications, or greater level of responsibility, output and productivity can be a valid reason for unequal pay conditions.

Organisational Factors

This can include the need to reward the comparator for working night shifts or during public holidays, or for moving to a particular geographical location for work. In Jenkins v Kingsgate (Clothing Productions) Ltd (No 2) [1981], the CJEU permitted an employer to pay full-time male employees a greater wage per hour than to a female employee who worked on a part-time basis because this ensured that expensive machinery was being used to its fullest potential.

Labour Market Factors

This can include issues such as market forces and skills shortages. In Rainey v Greater Glasgow Health Board [1987], a public sector employer was permitted to pay a male prosthetist more than a female counterpart because the employer’s new service required that they could attract him and others from the private sector. And, in Schafer v Royal Holloway and Bedford New College [2011] EqLR 429, indirectly discriminatory pay conditions were permitted because they prevented employees from moving to other institutions. However, in Enderby v Frenchay Health Authority [1992], it was held that the extent of the pay disparity must be proportionate to the need to attract or retain the employee.

The BBC Context

If a case is indeed brought against the BBC, it is likely that the success of the case will turn upon whether the BBC can identify a genuine material factor sufficient to meet the defence. A number of factors could be cited to potentially justify why female stars are being paid less than their male counterparts:

Attracting and Retaining Talent

Many commentators, both in articles and on Twitter, have sought to justify many of the salaries paid by the BBC by noting that the corporation in under a constant battle to retain talent in an increasingly competitive market. Indeed, there is no doubt that – with the rise of Netflix and Amazon alongside traditional competitors such as ITV, Channel 4 and Sky – the BBC is under pressure to keep major stars that draw in significant revenue under its payroll.

In relation to equal pay claims, such a justification may carry some weight for certain individuals like Gary Lineker: football punditry is an incredibly lucrative business and the regard with which Lineker is held by most football fans thanks to his role on Match of the Day undoubtedly means that the BBC are forced to fight off advances from competitors. This may prevent claimants like Clare Balding or Gabby Logan from asserting successful claims, though there still remains scope for them to argue – on the basis of Enderby – that Lineker’s salary is not proportionate to the need to retain him.

However, it is doubtful that such argument be used to justify the unequal pay conditions suffered by claimants who work in roles that are arguably less dependent on the status of the individual. Examples could include The One Show’s Alex Jones – the figures show that she is in a lower pay category than her co-host Matt Baker – or the Today programme presenter Sarah Montague, who is not on the list despite her male colleagues Nick Robinson and Justin Webb (plus female colleague Mishal Husain) featuring.

Seniority/Responsibility

It might be argued by the BBC that the disparity of pay between some of its stars can be attributed to their seniority and responsibilities. Take Huw Edwards and his fellow female newsreader Reeta Chakrabarti, who does not feature on the list: Edwards is the main presenters of the BBC News at Ten on BBC One for Monday to Thursday as well as hosting the coverage of major national events whereas Chakrabarti works as a ‘relief presenter’ and correspondent for the same programme and its six o’clock sister show. Certainly, it is undeniable that the responsibilities and demands on each presenter appear different enough to potentially justify a pay disparity.

But this argument still does not seem to cover all the potential disparities: focusing again on the Today programme, there is no direct evidence (though past roles in the BBC may be a factor) to suggest that Montague – who first appeared in 2002 – should be considered any less senior to Webb, who joined in 2009.

Conclusion

The world of broadcasting is far more complex than many of the industries involved in the reported case law – such as teachers at schools, cleaning companies and medical professionals. For one thing, it must not be overlooked that the notion of ‘celebrity’ is involved. Thus, while radio presenter Steve Wright presents the same number of shows as Vanessa Feltz, the extent to which he has a larger base of loyal listeners may justify any pay disparity.

Furthermore, the extent to which any definite conclusion can be drawn is heavily limited by the fact that the majority of the listed stars take on multiple roles for the BBC and the figures do not specify what has been earned for each role. The figures also exclude earnings from projects production companies or BBC Worldwide, which generates commercial revenues.

Ultimately though, it seems that for the majority of potential claims that arise, the BBC may well have a valid justification in law such that pursuing claims of pay discrimination may not be the most successful way to achieve what is clearly much-needed equality in the corporation. Indeed, it is arguable (and for another article to discuss) that the issue might not not so much be equal pay but perhaps equality in job opportunities. Yet all is not lost on the pay front: the fact that these figures have entered the public consciousness means that their publication may well prove be the first step to resolving the problem.

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Tagged: Discrimination, Employment Law, Equality, Media

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