Recognising experience
In a letter to staff, director of news and current affairs Fran Unsworth says it was right that the salaries offered by the BBC recognised their previous experience.
The employer needs to demonstrate a valid ‘material factor’ to explain the difference. This can include the experience of the candidates, but the difference needs to be significant, relevant and genuine” – Alex Kiernan, Loch Employment Law
“Equal pay is a legal entitlement to be paid the same if you are doing equal work. That does not mean, however, that everyone gets paid exactly the same for the same job – but rather that the reason for any difference must be unconnected to gender,” the letter says.
“Within the BBC we use pay ranges for each job. The purpose of this structure is that it allows us to make consistent decisions about individual pay, in line with our pay principles. In any job we expect to see a spread of pay across the job pay range.
“Where an individual is positioned will be based on a balance of three key factors: the market; the role i.e. what they actually do; and individual factors such as experience.”
What the law says
There are circumstances that allow employers to offer men and women differing salaries in the same role without being in breach of equal pay legislation, explains Alex Kiernan, a lawyer at Loch Employment Law.
“The employer needs to demonstrate a valid ‘material factor’ to explain the difference. This can include the experience of the candidates, but the difference needs to be significant, relevant and genuine,” he says.
“Employers need to carefully consider their rationale when using this defence, as the employment tribunal will look very closely at the material factors relied upon and whether sex has played a part in the organisation’s decision making process.”
If Karen Martin were to take an equal pay claim to an employment tribunal, the BBC would need to be very clear about how it has calculated the salaries for both staff, explains Beverley Sunderland of Crossland Employment Solicitors.
“They would need to, very particularly, set out what was considered in setting Karen and Roger’s salary and why a higher salary for Roger is justified. It’s not as easy as just saying ‘he has more experience’.