The success of Samira Ahmed in alleging that her employer, the BBC, discriminated against her by virtue of her sex has received a great deal of press coverage and legal comment.
After the hearing, the BBC commented: “We’re sorry the tribunal didn’t think the BBC provided enough evidence about specific decisions – we weren’t able to call people who made decisions as far back as 2008 and have long since left the BBC.”
The decision of the Employment Tribunal (London Central) was not simply a declaration that notwithstanding Ms Ahmed’s protected characteristic (her sex), the BBC had discriminated against her by paying her comparator Jeremy Vine considerably more for doing essentially the same job. It modified her employment contract so as to ensure that its terms were no less favourable than his. It did so specifically because it found her work on Newswatch was similar to his on Points of View but that she was paid a fraction for similar work.
Newswatch is a BBC News programme which is similar to BBC1’s Points of View, in that it offers viewers’ critiques of the BBC’s output, limited to news programmes. It is repeated on BBC Breakfast. The BBC argued that both POV and Mr Vine had a wider profile and level of audience recognition, and that his salary simply reflected his market value as it had been negotiated at a time when there was competition for his services.
In 2017 the BBC had published its on-air talents’ salaries and 65 of the top 100 were men. It also published a Gender Pay and report and Equal Pay Audit. The National Union of Journalists lodged a grievance on behalf of 121 women.
The Tribunal first concluded here that the work done by the two presenters on POV or Newswatch was essentially the same and unaffected by the many years that POV had aired or by the (actually rather uncertain) relative viewing figures. It followed that the work was of equal value. There was therefore prima facie evidence of unlawful discrimination.
The burden therefore fell to the BBC in respect of other material factors which might have permitted it to pay Vine more and to rebut the presumption that the difference was due only to gender. Salary had been decided at the point of negotiation in each case; Vine received £3000 per episode from 2008, the Claimant just £440 in 2012. Although the Tribunal accepted that Vine’s negotiations, in particular, had taken place years before, it concluded that they ought to have been transparent enough to provide justification if justification were available.
The Tribunal did not accept that the fact that one was a news programme and the other a factual programme, so as to inform the notion of ‘profile’ of the programmes, justified the disparity. It was unconvinced that the idea of the relative ‘public profile’ and ‘audience recognition’ levels of the two presenters was a meaningful distinction in context, not least because Vine’s profile was far lower at the time when his salary was negotiated and there was no evidence that Ms Ahmed’s profile had been considered at all. Neither had Ms Ahmed’s own broadcast journalist experience apparently been taken into account, given that she had been paid the same as an inexperienced male, Ray Snoddy. Finally, the Tribunal was unconvinced that the disparity could be explained with reference to the ‘market rate’, which sought to justify Vine’s salary with reference to that of his vastly more experienced predecessor at the time of negotiation, Terry Wogan, but on limited and uncertain evidence.
The Tribunal was to an extent in the unenviable position of comparing oranges and apples; the two individuals’ negotiations were carried out years apart, concerning two different programmes, broadcast on different platforms about comparable but distinct subjects. However it concluded that both were fruit, capable of relative assessment, and was unsatisfied with the alternative explanation for the discrimination advanced by the BBC.