PROVING THINGS 171: A TALE OF TWO TELEVISION PRESENTERS (AND OF A CASE WHERE THERE WAS NO EVIDENCE AT ALL ON VITAL ISSUES)

The judgment of the Employment Tribunal in the case of Ahmed -v- BBC (10th January 2019) has already received wide publicity.  It is worthwhile looking at the paucity, often the total absence of evidence, on many key issues on the part of the BBC.

“The burden then passes to the Respondent to prove that the difference in pay, was caused by some factor other than the difference in sex. That means that it has to prove why the Claimant and Mr Vine were paid the sums that they were paid. The burden is not discharged by witnesses who had no involvement in setting those rates of pay speculating on what the reasons might have been or attempting to provide an ex post facto justification for the disparity in pay. In order to discharge the burden the Respondent needs to adduce evidence about what factors were relied upon to determine the rates of pay offered to the Claimant and Mr Vine. It cannot rely simply on assertions that it made in its pleadings.”

THE CASE

The applicant is a journalist, she worked for the BBC and presented the “Newswatch” programme. She was paid considerably less than Jeremy Vine who presented “Points of Views”.  She brought an action claiming that this difference in pay was due to sex discrimination.  That application was successful.

ABSENCE OF EVIDENCE

One prominent element in the judgment is the absence of any explanation from the Defendant BBC on many key issues.

 

NO EVIDENCE FROM THOSE WHO NEGOTIATED THE CONTRACT

Firstly there was no evidence from those who negotiated Jeremy Vine’s contract.

  • Alex Armitage did not give any evidence before us about the negotiations for Points of View. The Respondent sought to rely on an email from him dated 15 October 2019 to the Claimant’s solicitor. We admitted that email in evidence but said that we would attach to it such weight as we thought In the email he said that he had no documentary evidence of the negotiations other than one email. He also said that he recalled “reluctantly” accepting £3,000 because the figure was less than what he could achieve “elsewhere” given his client’s “market value as a major star”. We attached no weight to that evidence. The Respondent could have called Mr Armitage as a witness but had chosen not to do so. His evidence had not been tested in cross-examination. It was not clear what Mr Vine could have achieved elsewhere in circumstances where he was tied to working for the BBC for the next three years. It is clearly in Mr Armitage’s interest and that of his clients to say what he did. He is hardly likely to say that his client would have been prepared to accept a lower sum but that he pushed for as much as he could.

 

NO EVIDENCE AS TO WHAT PREVIOUS PRESENTERS HAD BEEN PAID

One remarkable element of the judgment is the Tribunal’s decision that it could not reply on a document produced by the BBC as to what previous presented of Point of View had been paid.

  • The Respondent in its closing submissions made many references to “the evidence” before the Tribunal of what the previous presenters of Points of View, including Terry Wogan, had been paid. The “evidence” relied upon by the Respondent was an undated document headed “Summary of Contracts: Presenter Pay on Newswatch & PoV”. It contained the names of various presenters, the dates on which it claims they presented Points of View and what it claims that they were paid. There was no evidence before us of who had created that document, what the source of the information on the document was or when and for what purpose it had been created. It appeared in the bundle of documents in the section where we had the papers relating to the Claimant’s grievance appeal. In the index it was referred to as “Appeal Panel copy” Mr Leatham’s evidence was that he did not know whether it had been prepared for the grievance appeal

 

  • We had concerns about whether the document had in fact been prepared for the appeal panel. There was nothing in the appeal documents to show that the appeal panel had sought that information or that someone had sent the panel that information. There is, however, a document that indicates the contrary. In a  document headed “Appeal Summary Investigation Table” someone has set out the various matters that the panel was looking at. In respect of the Claimant’s complaint about being paid less than Jeremy Vine for doing similar work, it was noted that in  the original grievance it had been shown that there was a justifiable reason for Mr Vine being paid more, and it referred to an email from Emma Trevelyan to Paula Greenwood dated 26 November 2018.
  • For the reasons given above, we concluded that we could not find as fact that the presenters of Points of View had been paid what the Respondent claimed they had been paid on the basis of an undated document created by an unknown person with no evidence before us of how, when, why and by whom it had been created, especially when that document was inconsistent with another document disclosed by the Respondent. The Respondent had not at any stage asked the Claimant to admit the facts stated in that document. If the Respondent considered that evidence was important, it should have called evidence about it in the normal way. A witness should have given evidence about what records he or she had accessed and what they had shown, and the relevant documents should have been disclosed to the Claimant in the normal way. An A4 sheet asserting facts is not on its own, without any further information, evidence of the facts stated on

ASSERTIONS WITHOUT EVIDENCE

  • An O and O report for BBC Audio and Music on 17 September 2010 found that Jeremy Vine was one of the three most popular magazine presenters on There was no evidence before us about who the recipients of that report were.

A FAILURE TO ADDUCE EVIDENCE

The judgment sets out, in clear terms, the BBC’s failure to provide evidence to justify the disparity between the sums paid. Here are selected extracts that show a wholesale failure to adduce evidence on key issues.
  • Once the Claimant has established that her work on Newswatch was like that of Jeremy Vine (a man) on Points of View and that she was paid less than he was, the presumption is that that the difference in pay is due to the difference in gender. The burden then passes to the Respondent to prove that the difference in pay, was caused by some factor other than the difference in sex. That means that it has to prove why the Claimant and Mr Vine were paid the sums that they were paid. The burden is not discharged by witnesses who had no involvement in setting those rates of pay speculating on what the reasons might have been or attempting to provide an ex post facto justification for the disparity in pay. In order to discharge the burden the Respondent needs to adduce evidence about what factors were relied upon to determine the rates of pay offered to the Claimant and Mr Vine. It cannot rely simply on assertions that it made in its pleadings. If the Respondent fails to discharge that burden (i.e. it cannot prove that any of the factors that it has set out in its defence were in fact the cause of the difference in pay), the Claimant succeeds. She does not have to prove that the difference in pay was due to the difference in gender. Equally, it is not for the Tribunal to speculate on whether some factor, other than the ones put forward by the Respondent, might have been the cause of the disparity in pay.
  • In this case the levels of pay were effectively determined and set when the Claimant and Jeremy Vine were appointed to present their respective programmes. Jeremy Vine’s pay remained the same until it was reduced in January 2018. The Claimant’s pay was increased by a small amount in 2015 and then changed slightly when she went on to the OATS contract in October 2016. In both cases the contracts were renewed annually but there was no evidence before us that the rates of pay were considered afresh at that stage. As Mr Leatham said in his evidence, “as neither the editorial content of Points of View nor the funding had altered there would have been no real reason to look at  his fees.”  In Mr Vine’s case, maintaining his pay at that level was on occasions explained or justified because his total earnings, including from his other work, exceeded £100,000. Therefore, the focus of our inquiry has to be what was in the minds of the people who decided to pay Mr Vine £3,000 in 2008 and those who decided to pay the Claimant £440 in 2012. The difference in pay in this case is striking. Jeremy Vine was paid more than six times what the Claimant was paid for doing the same work as her. There needs to be clear evidence about what the cause of that difference
  • We have not heard evidence from anyone who was involved in those decisions and negotiations. Mr Leatham was not involved in any decisions or discussions relating to Points of View in 2008. We recognise that those decisions were made long ago and that some of the personnel involved in them may no longer be employed by the Respondent. However, those difficulties are easily surmountable if an organisation has transparent pay structures or processes for determining pay and for recording the rationale of its decisions about levels of pay. The BBC found itself in difficulties in this case because it did not (and, to an extent, still does not) have a transparent and consistent process for evaluating and determining pay for its on-air talent. It has no records (or, if it has them, it has not produced them) of how the pay levels for the Claimant and Jeremy Vine were determined. The only contemporaneous documentary evidence that we had before us were the two emails from Jill Ridley to Roger Leatham in March 2008 relating to the appointing of Jeremy Vine and two emails in March 2012 relating to the appointment of the Claimant (one from Barney Jones and one from the Negotiating Group making the offer). The effect of that is that there is no evidence before us of the factors that were relied upon to determine the initial levels of pay for the Claimant and Mr Vine.
  • Nor has the Respondent called any of the witnesses who dealt with later contracts for Points of View or expressed views on what Mr Vine was paid, such as Andrea Coles, Emme Trevelyan and Paul Luke. Mr Rangarajan and Mr Leatham gave evidence in general terms about the two programmes, how a presenter’s work is valued and about the Claimant and Mr Vine (although neither of them had detailed knowledge of the experience of either the Claimant or Mr Vine). We have taken into account that evidence to the extent that it assists us in determining whether the Respondent has proved that any of material factors upon which it relies was the reason for the Claimant and Mr Vine’s pay being set at level at which it was. We deal below with each of the
  • The Respondent’s case is that these factors must have been taken into account because they are the kind of factors that are normally taken into account, and the levels of pay for the two presenters must have been the result of those factors being taken into account. In the absence of any evidence to show that these factors were taken into account, we are not prepared to assume that they were. Furthermore, we think that if they had been taken into account, it is very unlikely that anyone could have concluded that the difference in the profiles of the programmes was such that the correct levels of pay for the presenters were £3,000 for one and £440 for the other. We say that for the following
  • If the genre of the two programmes had been taken into account, it would have shown that Newswatch was in the News genre and Points of View in Factual. There was no evidence before us that presenters working in Factual were paid more than those working in News. There was evidence that some of the highest paid in the 2017 high earners’ list were those who worked in News. Both programmes were aired on BBC1 at times when there were high numbers of viewers (Saturday morning and Sunday afternoon). The audience figures were about the same – 1.8 million for Points of View and about 1.5 million for Newswatch at the start, and later about 1 million for Points of View and 1.5 million for Newswatch. Points of View was of longer standing. There was no evidence before us that presenters of more established programmes were paid more that those who presented new programmes. The subject-matter of both programmes was the viewers’ opinions about BBC’s programmes. Points of View covered all programmes and Newswatch news programmes. If all those factors had been taken into account, it would have shown that there was very little difference between the two programmes. The fact that the presenter of one programme was paid more than six times what the presenter of the other was paid suggests to us that the profile of the two programmes (as defined by the Respondent) was not taken into account. The Respondent has failed to prove that the difference in pay was caused by a difference in the profile of the two programmes.
  • The Respondent’s case is that the difference in pay was due to the differences between the public profile and level of audience recognition of the Claimant and Mr Vine. It is not entirely clear what the Respondent means by “public profile” and “audience recognition” in this context and how it measured those. In its closing submissions, the Respondent submitted that Mr Vine had a very high profile by 2007/8 as could be seen from the Wikipedia entry and the undated table compiled by an unknown person (see paragraph 74 above). It also pointed out that by 2007 he was presenting Panorama and had presented the Radio 2 show for four years. In terms of audience recognition, the Respondent relied on the 2010 O & 0 survey of radio magazine artists and the talent reports of 2014, 2015 and 2017 (see paragraph 106 above).
  • Those who made the decision to pay Mr Vine £3,000 in 2008 could not have taken into account any of the audience recognition evidence upon which the Respondent relies for the obvious reason that it post-dates their decision. There was no evidence before us that they had, or took into account, any audience recognition material, or that it played any part in the decision to pay him £3,000. Nor was there any evidence before us of what they knew of his public profile at the time and what part that played in their decision. Mr Leatham’s evidence was that he was aware that Jeremy Vine had built up his reputation presenting the Radio 2 show, which had a strong regular audience, and that he was broadly aware that he had done work as a correspondent and presenter on television for the BBC but that he did not have detailed knowledge of that. Mr Leatham also gave evidence that in 2007/2008, in comparison with Terry Wogan, who was an “extremely high-profile presenter” Jeremy Vine was up and coming and did not have the same status as Terry Wogan (see paragraph 80 above).
  • There was no evidence before us that the Claimant’s public profile was taken into account by Barney Jones or anyone else in deciding to pay her £440. By 2012 the Claimant had worked for five years as a presenter and correspondent on television for the BBC and had co-presented the Channel 4 news with Jon Snow for nine years. Nor was there any evidence that they had, or took into account, any audience recognition information about her. The Respondent relied on the On-Air Survey conducted by Populus in December 2017 to show that audience recognition of Jeremy Vine was much higher than that of the Claimant. That evidence does not assist us at all. Firstly, we are concerned with the audience recognition of the two presenters in 2008 and Secondly, what matters is the audience recognition information that was known to the individuals who set the pay levels. Thirdly, what matters is what part that played in their decisions. On all those points, we had no evidence at all.
  • The Respondent has failed to prove that the difference in pay was caused by the differences between the profiles and audience recognition of the Claimant and Jeremy Vine.
  • Points of View and Newswatch are unique to the BBC. No other television channel broadcasts a programme on which it discusses its viewers’ opinions on its programmes. There was no evidence before us of what other channels paid presenters for presenting similar fifteen-minute pre-recorded News or Factual programmes. There was no evidence before us of what Jeremy Vine would have been paid on another channel for presenting a fifteen-minute pre-recorded Factual programme.
  • There was no clear evidence before us of what Terry Wogan had been paid in 2007 – it could have been £2,000, it might have been £3,500. What is clear from what Roger Leatham said about Mr Vine’s status compared with that of Terry Wogan in 2007 is that Jeremy Vine’s market rate would have been significantly lower than that of Terry Wogan. We had no reliable evidence about the rates of pay of previous presenters of Points of View (see paragraphs 80- 85 above).