By Raoul Parekh - 31 January 2018
Equal pay has been in the news again recently, but this time not for good old gender pay gap reporting (see our previous coverage here and here). This time it’s for what sometimes happens next: a threatened equal pay claim.
The protagonists are Carrie Gracie and the BBC. Until recently, Carrie Gracie was the BBC’s China Editor. After the BBC was required to publish salaries of all employees earning over £150,000 (following a Government requirement imposed as part of its charter renewal), Ms Gracie was “dismayed” to learn that two other (male) international editors were paid more than her.
Although the BBC offered to partially remedy the issue by increasing Ms Gracie’s salary by £45,000, she resigned in protest from her editor role. She complained that the increase would still not deliver pay parity with her male colleagues, and emphasised that she was seeking equality (not merely more money). Ms Gracie remains employed by the BBC and fronted the flagship Radio 4 Today programme several times this month while the row caused by her resignation exploded.
Ms Gracie’s case has justifiably caught the headlines, and the HR/employment law world will be watching closely to see how her threatened equal pay claim develops, and how the BBC responds. However, the many commentators have been asking a more basic question: why haven’t we solved this yet? It’s been 40 years since the Equal Pay Act (see Made in Dagenham – a BBC Films production - for more details), and everyone agrees that women and men should receive equal pay for equal work – so why isn’t it happening?
The full answer to that is a complicated one, based no doubt in part on the fears of the impact bringing a claim might have; the costs/risks of doing so; the lack of knowledge of legal rights; the different approach of men and women to salary negotiations; lack of pay transparency; and myriad other factors. A detailed consideration of those factors is sadly beyond the scope of this article. But this case has led to a focus on one possible solution, put forward by Ms Gracie herself: a fixed pay-scale that defines job roles in detail and sets salary levels.
There is a pleasing simplicity to the idea: if every role is defined and salary set for the role (not the individual person), how could anyone accuse the company of discrimination? We think that – unfortunately - this approach still leaves plenty of scope for claims. It also doesn’t really address any of the root causes of the pay gap or unequal pay.
The key problem is that for this plan to work it must be the case that roles can be meaningfully grouped together in clumps that include both men and women. Otherwise, setting the pay levels for the role becomes a proxy for doing so at an individual level.
That is sometimes the case – e.g. on a graduate training scheme, or for Sales Associate roles. It has had some success in the public sector. But the problem is that even in large organisations (like the BBC), the opposite is often true. Carrie Gracie points to the BBC’s three other “international editors”, of whom the two male editors – Jon Sopel (North America Editor) and Jeremy Bowen (Middle East Editor) – are both paid more than her (as was revealed in the salary publication referred to above).
The obvious question, though, is whether the roles of international editor are all exactly equivalent. Gracie appears to acknowledge that Jon Sopel (for example) is generally on screen more than her (perhaps because President Trump generates more headlines than President Xi Jinping). Against that, Gracie counters that covering events in China is more practically demanding, and requires a combination of language skills (she speaks fluent Mandarin) and journalistic ability that is hard to replace.
We can’t judge whether Sopel or Gracie is the more valuable journalist or in the more demanding role, but the obvious corollary of the discussion is that despite the superficial equivalence of titles (China Editor vs. North America Editor), it is not necessarily the case that the roles or the individuals’ contribution in that role are equivalent. It follows from this that a difference in pay could be defensible, or could be discriminatory (we do not take a position on the merits of the threatened claims, or Gracie vs. Sopel).
As soon as the employer finds themselves making distinctions between those carrying out the same “role” (for example, by adding a “screen time bonus”, or a “language skills recognition payment”), they are plunged directly back into arguments about whether different levels of pay are justifiable - which is exactly the basis of Carrie Gracie’s threatened claim.
Our view is that the Gracie case neatly highlights the difficulties for employees in working out whether they are being paid fairly, but the ensuing debate showcases the parallel difficulties for employers in establishing a system that pays people fairly and avoids disputes. The BBC’s approach thus far seems to be to approach these issues on an individual basis (another of Carrie Gracie’s criticisms); perhaps a more holistic approach coupled with employee consultation could help aid understanding of the complexities here. Sadly, this is an area in which there are no easy answers – as we expect will be proved by the coming litigation (and possible Equality and Human Rights Commission investigation). Private sector employers will be watching closely to see whether the BBC cases represent the next stage on group equal pay claims’ journey from the public sector to the private sector (via Asda and some other large supermarkets). As ever, we will be watching and will keep our subscribers updated…