Written submission from BBC Women (EEA0025)

This submission is from BBC Women – hundreds of women working at all levels, on air and off air, to campaign for equal pay and pay transparency at the BBC.

More than a year after asking for their pay to be reviewed under the Equality Act 2010 many women are still stuck in complex unresolved internal processes at the BBC. These involve both women stuck in a cycle of informal “chats” and women in a formal grievance process taking many months at each stage.

Others, deterred by the stress and fear involved in challenging their employer, have accepted ad hoc revisions that fall short of their right to equal pay. These invisible cases are not publicly acknowledged by the BBC – nor the number of increases suddenly made to women’s pay without acknowledging the context of the law. Many experienced women have been told they have “grown” suddenly.

We are a group of highly qualified, determined women with a public profile collectively and in some cases individually.

Our experience of trying to fight for the legal right to equal pay, without as yet any intervention by the EHRC, reveals a system where there is no deterrent or actual penalty for a failure to comply with the law.

How easy it is for people to understand and enforce their rights under the Equality Act?

We believe we understand our right to equal pay but to date we have found it impossible to enforce this right.

Our employer has circumvented the Equality Act by refusing to acknowledge equal pay claims and referring instead to ‘fairness’. For example it has resisted any discussion of comparators, talking instead of cohorts. Or it has sought to introduce other comparators, ignoring the right of the employee to name them.

Our employer has refused to conduct independent job evaluations, ignored questions and withheld key information at every turn. It has referred to proven inequalities as ‘oversights’ and ‘anomalies’ which it then proposes to address through arbitrary pay ‘revisions’.

The substance of women’s work – the tasks, skills, responsibilities and risks – have often been ignored in the many different internal processes. There has usually been a reliance on the subjective views of one or two managers.

While our employer admits that pay decisions in the past have been inconsistent and ad hoc, it is seeking to justify these decisions retrospectively with a new framework of job categories fitting around some of the existing pay inequalities.

There is no information about whether this framework is consistent with the law. Nor any evidence that it is based on robust job evaluations.

The effect on women - intended or unintended - has been to exhaust and frustrate individuals bringing cases. Many women simply give up, especially as the process means our employer has sought to argue in each case that the woman’s work is worth less than male colleagues.

Some women have been left feeling worthless or diminished, ground down by an employer refusing to admit any equal pay liability even where it accepts there are unexplained, and unjustified differences between men and women.

How well does enforcement action under the Equality Act work as a mechanism for achieving widescale change?

We see no evidence that it does. Without the real fear of enforcement there is no deterrent.

The lack of strict process guidelines and high penalties have meant that the best hope is for coordinated group litigation.

Our union, the NUJ, failed to do this. Women seeking advice from the NUJ as individuals have been told it is not available.

This means the BBC has instead been able to deal with cases individually, putting the burden on individual women to assemble evidence.

Group litigation or group internal complaints should be made easier.

How effective and accessible are tribunals and other legal means of redress under the Equality Act, and what changes would improve those processes?

The tribunal process is inaccessible because of cost and time scale. Employment lawyers advise that claimants should exhaust internal complaints process before litigation.

The BBC processes have taken more than a year, with some women with cases still unresolved after that length of time. Women have found it stressful and mentally and physically draining to move from informal complaint to grievance and then appeal.

How effective are current remedies for findings of discrimination in achieving change, and what alternative or additional penalties should be available?

We would like access to independent adjudication, or at least mediation, at a much earlier point. We also feel that time limits currently operate in a way that makes it impossible to mount group claims effectively.

The EHRC should define how cases should be handled and insist on independent job evaluations.

It should also be able to enforce penalties on delays to resolving cases as well as monitor cases externally.

The Commission also clearly needs a massive injection of resources. Women should be able to dial a hotline to have the Equality Act explained and to understand what it is their cases require.

We feel that the penalties for pay discrimination are much too light. Our employer shows no sign of taking them seriously. In our view, they provide no disincentive to discrimination.

Are the powers of the Equality and Human Rights Commission sufficient and effective?

It is hard for us to judge, as they have not yet been used to intervene at the BBC despite the number of women raising concerns about equal pay and despite many well documented cases.

Is the Commission using those powers well?

We would like the Commission to use its powers to investigate the BBC.

If this is the experience of a high profile group such as BBC Women who have been able to highlight their fight for equal pay, it doesn’t bode well for women in less fortunate positions.

Are changes needed to the Commission’s approach?

We would like to see a more robust approach. In conditions of secrecy, pay discrimination is easy, cheap and unpunished for most perpetrators. Until this changes it will remain pervasive.

Our experience is that the tactics used by our employer… of trying to deflect women, deter women, wear women out with long processes, and confuse or obfuscate discussions … have not as yet been enough to trigger any intervention.

Are there other models of enforcement, in the UK or other countries, that could be a more effective means of achieving widespread compliance with the Equality Act 2010?

We are keen to see the effects of the Icelandic model which shifts some of the burden of proof onto employers to justify pay disparities. We feel this is where the burden of proof should be rather than on the individual claimant as in the UK.

To require a woman to prove equal pay by relying on male colleagues to share information, in the face of an employer who refused to conduct internal processes with reference to the law, is to stack the odds too far against the individual.

We would like to see far greater pay transparency.

Currently 64% of the UK gender pay gap remains ‘unexplained’. On the principle that what goes unmeasured goes unmanaged, we would like to see a more determined effort to measure pay discrimination.

We strongly urge the Committee to consider recommending changes to the scope, powers and resources of the EHRC in order to enforce the Equality Act 2010.

If the law is not enforced it will lead to calls for further legislation, with clearer penalties for employers who seek to obstruct equal pay concerns raised by women.

September 2018