19 Nov 2018
Pay and equality and the gender pay gap has been high on the news agenda again, following the BBC’s publication of its “on air talent” salaries. The BBC has been heavily criticised for its pay practices following its publication of its presenting stars, with male stars, notably Gary Lineker and Chris Evans, being paid far higher amounts than any female presenter.
The Equal Pay provisions of the Equality Act 2010 allow women to claim equal pay to a man undertaking like work, work rated as equivalent or undertaking work of equal value. While the prospect of Claudia Winkleman and Tess Daly of prime time TV show, Strictly Come Dancing, with salaries of circa £400,000 claiming equal pay equivalent to Gary Lineker’s salary of £1.8m will have employment lawyers salivating at the fees to be generated, we anticipate that it is unlikely that we will have many employment tribunals at which the BBC will have to explain the rationale for the gender disparity.
In the real world, more mundane comparisons are made, for example, in local authorities between predominantly female dinner ladies and carers and predominantly male caretakers and dustbin men and in the private sector with Asda facing claims from shelf stackers and till assistants (more often female) claiming equivalence to individuals stacking goods in the warehouse (predominantly male).
As many local authority employers have found out to their cost, the fact that they pay men and women the same rate of pay to do the same jobs does not preclude an equal pay claim. The provisions of the Equality Act enable a woman to claim equal pay to a man. The claim does not need to be founded on the fact the woman is doing the same role as a man, but can also be founded on a woman claiming that she is doing work rated as equivalent, or work of “equal value”. These types of claims have enabled domestic workers, predominantly female and part-time, to achieve pay equivalents with male workers undertaking roles such as caretakers and refuse collection in the public sector. Could we now see Clare Balding, the highest female sport star presenter at the BBC claiming equivalence to Gary Lineker, whose earnings far outstrip that of Clare Balding.
If a woman can establish that the work is of equal value to a man, that she is paid less and there is a gender disparity in the roles being compared, then she can establish a case that the employer needs to be able to rebut by establishing that it has a “genuine material factor” that explains the differential in pay.
All employers with more than 250 employees are now required to publish pay data broken down by gender. If the statistical evidence reveals significant gender pay disparages, this in itself may provoke further action by disgruntled female employees.
While most employers’ pay scales and salaries will not attract the headlines of the BBC’s presenters, the evidence can be embarrassing to employers and could lead to potential equal pay claims.
Harding Evans offers assistance to employers in establishing an equal pay audit. This helps an employer identify issues and consider whether there is a material factor defence and those steps that may need to be taken to address any gender equality in pay. Critically, we can arrange for a privilege expert high level review of your working practices to identify the level of risk.
Harding Evans is a trading name of Harding Evans LLP, a limited liability partnership, registered in England & Wales (registered number: OC311802), authorised and regulated by the Solicitors Regulation Authority (SRA number: 419663).