Helen Watson: BBC equal pay case: implications for settlement agreements and discrimination claims

BBC equal payThe BBC once again made the HR headlines following the news that four female presenters have lost their bid to take legal action against the corporation on grounds of equal pay. For employment law professionals, the case certainly poses an interesting challenge, with it being revealed that equal pay issues raised during their employment had been settled under a settlement agreement.

The case suggests that settlement agreements would be binding in these circumstances but interestingly, whatever was agreed and settled in the workplace by the female presenters was not sufficient to prevent them from now bringing the additional legal challenge of sex and age discrimination.

Clearly, the fact that equal pay is not being permitted to be heard in the tribunal suggests that a precedent could be set here where an equal pay agreement is reached and subsequently challenged. This case suggests any agreement reached on equal pay in the workplace is likely to prevent it being overturned and challenged again in tribunal, but all cases will, of course, turn on their own set of facts.

It would be unusual for a settlement agreement not to also waive sex and age discrimination, but it, of course, depends on the agreement purpose and wording and potentially whether said claims were in the female presenters’ contemplation at the time of agreeing the equal pay element of it.

Potentially, the sex and age discrimination is likely to have arisen after reaching an equal pay agreement, or the ability to bring discrimination claims was carved out of the original agreement reached.

In light of this case, employers should review and update their equality and diversity policies, how they carry out training regarding these, and apply these in the workplace to ensure inclusion. This would also include a review of pay scales and how pay decisions are reached. Pay should not be a secret, and particularly for larger organisations there is a requirement to be transparent and publish pay grades, but it is good practice to be proactive and apply this level of transparency universally, whatever size the business is.

As the female presenters probably had different equal pay claims that were previously settled, but now have sex and age discrimination based on the same or a similar set of facts, it enables these cases to be heard together by the tribunal and, if successful, a collective award can be made accordingly.

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If this proceeds to tribunal and the female presenters are successful, this could give rise to a raft of collective claims from other claimants in similar situations. For employers, taking proactive action now is key.

Helen Watson is a partner and head of employment law at Aaron and Partners