Equal Pay Claims Case

Equal Pay Claims –Stacey Macken v BNP Paribas London Branch is Ordered to Publish Salaries, Bonuses and Pension Contributions

Stacey Macken v BNP Paribas London Branch – Published 11^th February 2022

On 14^th January 2022, the Employment Tribunal, in a landmark case on the subject of equal pay, handed down its remedy judgment in respect of its findings in a claim brought by Ms Macken, a Financial Product Manager who worked for BNP Paribas, a bank. In the first decision of its kind, the ET ordered the bank to perform an Equal Pay Audit, under regulation 2, Equal Pay Audit Regulations 2014.

Ms Macken brought the following claims against her employer; equal pay, direct sex discrimination, victimisation, protected disclosure detriment and harassment, suing them for the sum of £4million pounds.

BNP PARIBAS, in 2019, were found by the Employment Tribunal to have:

1. On the grounds of sex, paid Ms Macken less than her male counterpart with the same job title.
2. Directly discriminated against Ms Macken, on the grounds of sex, and
3. Victimised Ms Macken after she had raised concerns about unequal pay and sex discrimination.

It was reported that Ms Macken was awarded a sum in excess of £2million pounds, including an uplift for BNP Paribas’ unreasonable failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures (the “ACAS Code”).

The findings in 2019 served as a warning for many in the financial services sector. The judgment was highly critical of the pay culture within the sector, and particularly noted its rejection of BNP PARIBAS’s “implicit suggestion that banks are somehow in a special position and that [the Tribunal] should accept as a fact of life that they have opaque pay structures”.

The case was widely reported in the media and detailed the poor treatment of Ms Macken by one of her bosses, who would frequently dismiss questions that she asked with, “Not now, Stacey”, which became somewhat of a catchphrase used sarcastically amongst her colleagues. Another boss would regale her with stories about his friend’s sexual fantasies involving sex workers.

The media also detailed how whilst Macken was paid £120,000, her male counterpart was recruited shortly afterwards for £160,000. The same male counterpart was paid seven times the £33,000 in bonuses paid to Macken.

BNP PARIBAS sought to change their pay practices and corporate culture by instituting a remediation programme including:

1.Undertaking an annual ‘equal pay review’.

2. Overhauling its recruitment and performance appraisal practices
3. Reviewing job descriptions and hierarchies across the company
4. Requiring staff to undertake further training.

In doing so, BNP Paribas argued that it understood the necessary action it needed to take, without the need for an equal pay audit; however, the Tribunal ordered that despite these measures, an equal pay audit must be undertaken and published by June 2022. BNP PARIBAS’s pay practice was noted by the ET to have fallen significantly below the statutory guidance on equal pay, so much so that it was deemed “logical” that the issue would not be isolated to Ms Macken.

The ET also deemed the bank’s equal pay review process insufficient in that it failed to include bonus payments, despite the 2019 findings regarding direct sex discrimination in setting Ms Macken’s bonuses and the review contained virtually no information on the methodology applied or the approach taken to analyse pay inequality. Therefore, an Equal Pay Audit was ordered.

What Must the Equal Pay Audit Cover?

The equal pay audit will be undertaken on anyone who was an employee at BNP Paribas between 1 January and 31 December 2021, including those employees who only worked part of the year, or who were absent due to illness during that time.

The audit must include the compilation of data relating to the entirety of those employees’ monetary compensation, including:

1. Base pay
2. Discretionary bonuses
3. Pension contributions
4. Allowances

BNP Paribas is then legally obliged to identify the disparity in pay between its male and female employees and explain the reasons for that disparity. Where a potential breach of the Equal Pay Regulations is identified, they must detail the reasons for that breach and set out how they propose to rectify this and prevent it from occurring in the future.

If further breaches are identified, then the bank must equalise the pay between their male and female employees, or it risks further claims being brought by female employees.

The bank now also faces the risks associated with the publication of the detailed analysis of its employees’ remuneration, which will allow other competitors to ensure they are offering better payment terms at a time when recruitment and retention is already difficult. It will also allow employees to see exactly what terms their comparators are being paid, risking further claims, and reaffirms that the bank has broken the law, causing reputational damage and affecting employee morale and commitment to the employer.

How can employers protect themselves against cases of this type?

When deciding upon and reviewing pay, employers should ensure they are considering the statutory code of practice regarding equal pay and review their employees’ pay via their own internal audit on a regular basis.

Transparent pay practices and clear guidance on the criteria for pay progression would also reduce the risk of facing an Equal Pay Audit in the future.

Specialist Employment Law Solicitors

If you’d like to find out anything more about this article, we’ll be happy to help. Harinder Sangha is a Senior Solicitor in Eric Robinson’s Employment Department. Harinder can be contacted by email: harinder.sangha@ericrobinson.co.uk