The issue of equal pay for women is far from resolved. The biases at the root of the issue are often unconscious, and even otherwise sophisticated organisations appear to have difficulty recognising and addressing them. Such institutional blindness was recently highlighted by Samira Ahmed’s employment tribunal victory against the BBC. The arguments used in court by the BBC show there is still a long road to travel.
Ahmed’s case was straightforward. She argued that her role presenting Newswatch was akin to Jeremy Vine’s presenting Points of View. Both programmes were of similar length, content and format. However, Vine was paid £3,000 per episode, while Ahmed was paid £440.
The court accepted that the work involved in presenting both programmes was alike for the purposes of the Equality Act 2010. This created a presumption that the difference in pay was unfair, shifting the burden of proof to the BBC to justify the gap between the presenters’ salaries. In law, discrimination can be found whether the motivation was conscious or unconscious.
In its efforts to justify the difference in pay, the BBC even ventured that an alleged glint in Vine’s eye, and the cheeky nature of the programme, justified unequal treatment. The tribunal dismissed this argument, saying it had “difficulty in understanding what the [BBC] meant by a ‘glint in the eye’ and how that translated into a ‘skill’ or ‘experience’ to do a job”, adding: “How does one acquire such a skill or experience?”
The tribunal also noted: “The attempts at humour came from the script. Jeremy Vine read the script from the autocue. He read it 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.”
Counsel for the BBC also reportedly argued that, while Vine was like a “concert pianist in a concert hall”, Ahmed resembled “someone playing piano to a ballet class of 10 children”. This spurious argument was made, despite Ahmed’s programme attracting higher viewing figures than Vine’s.
Even if the BBC genuinely had not intended to discriminate, it showed a remarkable lack of self-awareness in failing to appreciate the strikingly obvious impact unconscious biases within the institution had on setting pay rates. In the wake of the #MeToo phenomenon, you might have thought the corporation would be more aware of the need to take women’s allegations of unequal treatment seriously – particularly since the BBC, as a public body, is subject to the public sector equality duty that requires it to have particular regard to eliminating discrimination.
The idea that discrimination is less serious when unintentional, or merely the result of unconscious bias, belongs in the past. In law, discrimination is actionable whether its motivations are conscious or unconscious. In 1999, the House of Lords embraced the decision of the tribunal in Nagarajan v London Regional Transport and others, which held that tribunals should take account of employers’ “conscious or subconscious” reasons for unequal treatment.
Yet, after decades of discussion, can we still continue to claim lack of awareness? A point must arise at which allegedly subconscious discrimination becomes a conscious act.
Companies should review existing levels of remuneration for male and female staff who do similar work to ensure equality of pay. Above all, employers should take the time to question the effect that conscious or unconscious biases might have on how their business operates, and then act robustly to address these.
Hina Belitz is a specialist employment lawyer at Excello Law