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terms and conditions. This is known as ‘like work’. Once it is established that an employee is being paid less than a comparator from the opposite gender who engaged on similar or ‘like work, the employer needs to demonstrate that this difference is not due to their gender and instead the result of other material factors. Samira Ahmed had worked as a presenter of the BBC show Newswatch since 2012. She raised a grievance against the BBC regarding her pay in comparison to that of fellow presenter, Jeremy Vine. The latter worked on another show, Points of View, that covered similar content to Newswatch . However, whilst Ahmed was paid £440 per episode, he was paid £3,000 per episode up until July 2018. The BBC, which found that this difference in pay was not down to the gender of the two presenters, did not uphold Ahmed’s grievance. She later brought a claim of sex discrimination to the ET. The BBC put forward a number of material factors to justify the pay difference, including: ● the two shows had different profiles ● Vine had a different public profile to Ahmed and was more recognisable to audiences ● Vine had more broadcasting experience than Ahmed ● Vine’s market rate was higher than Ahmed’s and an alternative channel had allegedly made an offer to him. Ultimately, the tribunal upheld Ahmed’s claim. In forming their decision, they first concluded that the work conducted by both of them was ‘like work’; they both read from a script and presented content as instructed. They went on to explain that, in order to determine the reasons behind the pay discrepancy, they had to assess the mind-set of those who set the rates of pay. From what they could see, no evidence had been presented that the profile of the two shows had been considered by those who had set the rates. When considering the recognisability of Ahmed and Vine, again the ET could see no evidence that this had been assessed when pay rates were set. When Vine became presenter of Points of View , he was considered an ‘up and comer’ and had admittedly been paid ‘above the market rate’ when he took over from Terry Wogan. Experience did not also appear to have
sleeping whilst at work. In response, the claimant asserted he had been lying down for around ten minutes prior to being discovered due to a migraine and had actually conducted his duties. The claimant was suspended and later invited to an investigation meeting via a letter, which outlined that if there was any substance to the allegation, there would be a disciplinary hearing. However, on attendance at the meeting he was invited to, the claimant was informed that he was actually already at a disciplinary hearing. He was later dismissed. At the appeal stage, the claimant alleged that he had left the room through a side door to conduct his duties, which he believed explained why CCTV outside of the room had not seen him. However, his appeal was not upheld. He later brought a claim to the ET for unfair dismissal. The ET upheld his claim, being very critical of the investigation that had taken place prior to the dismissal. This was because there was no investigation meeting; the claimant had been invited to what he thought was one, but it turned out actually to be the disciplinary hearing. Calling this a ‘serious procedural failing’, the tribunal asserted that the claimant had been denied a ‘basic employment right’. The employer appealed, arguing the wording of the tribunal, in particular making reference to an investigation hearing as a ‘basic employment right’, suggested a separate investigatory hearing and disciplinary hearing is required in every case. The EAT dismissed this appeal, finding that the procedure leading up to the dismissal in this case, in particular the investigation, had been unfair. Although the EAT agreed with the tribunal’s reasoning on this basis it noted that neither section 98 of the ERA, nor the ACAS code, required there to be a separate investigation meeting and disciplinary hearing in every case. Provided the employer has acted reasonably in its investigation, and taken steps to establish the facts, failure to hold an investigation meeting does not, on its own, render a dismissal unfair. Despite common belief, this case confirms it is not always necessary to hold an investigatory meeting before proceeding to a disciplinary hearing; however, this will always be very fact specific. If within an employer there is a contractual right to hold investigation meetings, this should be done. n
been a factor; Ahmed’s rate of pay had been set at the same as her predecessor’s, even though she had much less experience than he did. Regarding the market value of both presenters, it was not clear to the ET what Vine’s predecessors had been paid, meaning it was difficult for them to compare the level of his salary. What was ...being able to justify why rates of pay have been set... clear to them, however, was that Vine had already been locked into a contract with the BBC when he joined Points of View . Therefore, his pay could not have been the result of attempts to keep him with the BBC. As a result of the above, the BBC had failed to demonstrate any other reason in the pay difference that was not related to gender. This ruling is quite an extreme example of equal pay; many employers will likely not make their decisions the way the BBC do. That said, it does highlight the importance of employers being able to justify why rates of pay have been set for their staff. If an employer believes two roles require different levels of skill and experience, they should identify what these requirements are and make sure this is clearly highlighted to all applicants for the role. Sunshine Hotel v Goddard In this case, the EAT held that there can be circumstances where, when considering misconduct, a separate investigatory and disciplinary hearing is not required. Under section 98(4) of the Employment Rights Act 1996 (ERA), whether a dismissal is fair or unfair will depend on whether the employer acted reasonably in treating the employee’s conduct as a sufficient reason for dismissing them. The ACAS code of practice on disciplinary and grievance procedures dictates that it is ‘important to carry out necessary investigations’ and that this will, in some cases, require the holding of an investigatory meeting prior to a disciplinary hearing. The claimant worked night shifts in a hotel, part of which involved patrolling the building. After he was found lying in a bed with the lights off during a night shift, management accused him of
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| Professional in Payroll, Pensions and Reward |
Issue 59 | April 2020
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