Cogent arguments are needed to justify different levels of pay for men and women, as the Samira Ahmed v BBC case now demonstrates. There are lessons here for smaller employers who may not have access to the £700,000 to meet back pay, as needed in this case.
An HR Director once warned me that if I ever received an Equal Pay claim on my desk, it was time to start trembling. Such cases are notoriously complex to defend and consume vast resources in terms of opportunity cost, not to mention the back pay.
It is important to remember that the test is “like work”; so it is not necessary for men and women to be in the same jobs for the woman (it is usually the woman) to bring an equal pay claim.
The second test is whether or not there is a material difference to justify any difference in pay. For example, a divergence in job market rates between, say, London and Manchester might be enough to justify a difference.
It is crucially important to document any rationale for pay-differences, which is one area where the BBC appears to have failed.
Job descriptions, person specifications and job evaluation can be helpful if it is necessary to show difference in work responsibilities and in the experience and qualifications required.
Gender pay gap reporting is required for those employing over 250 people (the figure to include workers and some self-employed). For those who employ fewer there is still an argument for equal pay reviews to identify any problems before any point of no return is reached.
The gender pay gap may be back on the agenda and it is one of the major Employment Tribunal risks.
Malcolm Martin FCIPD
Author Human Resource Practice
Blogs are for general guidance and are not an authoritative statement of the law.