The BBC is once again in the spotlight after it offered a more experienced male employee a higher salary than a woman in same role. But is it really an equal pay issue, or simply an example of an employer rewarding staff based on their experience? Ashleigh Webber reports.
Almost a year and a half since former BBC China presenter Carrie Gracie’s high-profile resignation after finding she was paid less than a male comparator, allegations of pay inequality have been reignited. BBC manager Karen Martin turned down a promotion last week after discovering she would be paid £12,000 less than a man in the same role.
BBC pay discrimination claims
Despite close scrutiny by MPs and the ongoing investigation into its pay practices by the Equality and Human Rights Commission – the outcome of which is will be published later this year – the BBC offered Martin and her colleague Roger Sawyer deputy editor roles in its radio newsroom, but with differing salaries.
In an email to her colleagues, Martin wrote: “Despite being awarded the same job, on the same day, after the same board, during the same recruitment process, BBC News asked me to accept a considerably lower salary than my male counterpart.
“I’ve been assured our roles and responsibilities are the same. I’ve also been told my appointment was ‘very well deserved’. It’s just that I’m worth £12,000 less.”
The BBC does not offer fixed salaries. Instead, staff are offered a wage that falls within pay bands agreed with its unions, based on factors such as experience and previous roles.
The broadcaster says Sawyer was offered a higher rate within the same pay band as Martin because he had “worked at or above this level for several years”, while the new role was a step up for Martin.
Even though equal pay legislation stipulates that employees doing the same role should be paid the same rate, can employers offer a higher salary because a worker is more experienced?
In a letter to staff, director of news and current affairs Fran Unsworth says it was right that the salaries offered by the BBC recognised their previous experience.
The employer needs to demonstrate a valid ‘material factor’ to explain the difference. This can include the experience of the candidates, but the difference needs to be significant, relevant and genuine” – Alex Kiernan, Loch Employment Law
“Equal pay is a legal entitlement to be paid the same if you are doing equal work. That does not mean, however, that everyone gets paid exactly the same for the same job – but rather that the reason for any difference must be unconnected to gender,” the letter says.
“Within the BBC we use pay ranges for each job. The purpose of this structure is that it allows us to make consistent decisions about individual pay, in line with our pay principles. In any job we expect to see a spread of pay across the job pay range.
“Where an individual is positioned will be based on a balance of three key factors: the market; the role i.e. what they actually do; and individual factors such as experience.”
What the law says
There are circumstances that allow employers to offer men and women differing salaries in the same role without being in breach of equal pay legislation, explains Alex Kiernan, a lawyer at Loch Employment Law.
“The employer needs to demonstrate a valid ‘material factor’ to explain the difference. This can include the experience of the candidates, but the difference needs to be significant, relevant and genuine,” he says.
“Employers need to carefully consider their rationale when using this defence, as the employment tribunal will look very closely at the material factors relied upon and whether sex has played a part in the organisation’s decision making process.”
If Karen Martin were to take an equal pay claim to an employment tribunal, the BBC would need to be very clear about how it has calculated the salaries for both staff, explains Beverley Sunderland of Crossland Employment Solicitors.
“They would need to, very particularly, set out what was considered in setting Karen and Roger’s salary and why a higher salary for Roger is justified. It’s not as easy as just saying ‘he has more experience’.
“If Roger was a woman, there would be no equal pay claim. In every contract there is a sex equality clause, preventing an employer from paying a man more than a woman [doing the same job].”
Staff of the same sex
But what if employees of the same sex were being paid differently?
“If the employees are of the same gender the employer would not have to be concerned about an equal pay claim,” says Kiernan.
“Discrimination legislation could however still be applicable to a disparity of pay between the same gender as a complaint could relate to a protected characteristic, such as race.”
Although Sunderland is unable to say what the likely outcome of Karen Martin’s case would be if it were taken to an employment tribunal, she thinks the BBC would be able to demonstrate it has a valid reason for offering Sawyer a higher salary. “They have absolutely had their fingers burnt in the past, so I would like to think they’ve learnt from that.”
They would need to, very particularly, set out what was considered in setting Karen and Roger’s salary and why a higher salary for Roger is justified. It’s not as easy as just saying ‘he has more experience’,” – Beverley Sunderland, Crossland Employment Solicitors
Employers should carefully inform staff about how their pay has been set and, once a valid reason for any difference is justified, it is “good practice that the person on a lesser salary is told how soon they can expect to start earning the same as their higher paid colleague”, says Charles Cotton, senior reward and performance adviser at the CIPD.
In the BBC’s case, Unsworth is clear that gender is not considered a factor when setting pay or considering which pay band staff should fall into, giving the deputy editor role as an example.
“The bottom of the pay range is £60,000 with the very top £100,000, and there are individuals within each quarter,” her letter says. “There are no women in the lower quarter of the pay range, the same number of men and women in the middle half, and no men at all in the upper quarter. This does not paint a picture of inequality.”
The BBC has since gone some way towards narrowing the gap between the two colleagues’ salaries by offering Martin a £6,500 pay rise if she were to take the role.