Equal pay in practice checklist 16
This checklist covers responding to an Equality of Terms questions form and requests for information during tribunal procedures. This replaces what was previously known as the 'equal pay questionnaire'. The form is in accordance with Equality Act 2010 section 138, which provides a mechanism for people who think they may have been discriminated against to obtain information. It is available, together with Guidance Notes, on the Government Equalities Office website.
The equal pay questions form
What is the purpose of an equal pay questions form?
The equal pay questions form is intended to help individuals who believe they may not have received equal pay (equality of terms) to obtain information from their employers to find out whether this is the case and, if so, why.
Terms used in the standard form questions form
The questions form refers to the 'complainant' and the 'comparator'. The person who thinks they may have an equal pay case is called a 'complainant'. In order to claim equal pay a complainant must identify a 'comparator' of the opposite sex. The comparator can be someone currently employed by you but can also be a predecessor or successor to the complainant. A complainant can claim equal pay with more than one comparator.
The form contains three standard questions:
- Do you agree that the complainant has not received equality of terms in accordance with the Equality Act 2010?
- Do you agree that the complainant is doing work equal to that of his or her comparator?
- Do you agree that the complainant has received less favourable pay or other contractual terms than his or her comparator?
In each case you are asked to state your reasons, as appropriate.
The form provides for a complainant to ask any other relevant questions s/he may want to ask.
For example, you could be asked to disclose the name of the comparator (in circumstances where a complainant does not know that person's name), their relevant salary details, or information about their job duties. You may also be asked questions about your pay policies and practices. For instance, you could be asked for information about pay scales, the provision of benefits and allowances, grading systems, job evaluation schemes, performance related pay schemes, or for details of how the rates of pay of the employee and comparator have been arrived at. You may also be asked for general statistical evidence about the workforce.
Is an employer legally obliged to reply?
No, an employer is not legally obliged to reply. However, there are several reasons why you might choose to do so.
- Answering the questionns may help resolve the dispute which could otherwise involve you in tribunal proceedings.
- If you do not respond, there is a chance the complainant will commence tribunal proceedings and will seek an order from the tribunal for disclosure of the relevant information in any event.
- If you do not reply, and the complainant commences proceedings, a tribunal may draw any inference it considers is just and equitable from a failure to reply within eight weeks without reasonable excuse, or from a reply that is equivocal or evasive. For example, a tribunal may conclude that you did not reply because there was no genuine and non-discriminatory reason for the difference in pay.
A request for 'confidential' information
Much of the information requested will not be 'confidential' but you may be concerned that some information, such as the exact details of a comparator's pay package, could be.
Are a comparator's salary details in this context confidential?
If pay in your organisation is collectively bargained, or if your organisation publishes its pay scales, it probably cannot be said that what someone earns is confidential. Even if this is not the case, employees are not usually under an obligation to keep what they earn 'confidential'. See also our information about limits to pay secrecy clauses where pay discrimination is suspected.
Where information enables a specific individual to be identified by the complainant, there are a number of issues to be considered.
'Personal data' is protected by the Data Protection Act 1998 and can only be disclosed in accordance with data protection principles. Personal data includes any data that is held on computerised and non-automated systems from which individuals can be identified. The pay and personal characteristics of an employee are classified as personal data for these purposes.
The disclosure of personal information in the employment context is also protected by the implied duty of trust and confidence owed by an employer to an employee.
The Data Protection Act
The Data Protection Act 1998 is not an automatic bar to the disclosure of information sought for equal pay claim purposes.
According to the Act, disclosure of personal data can take place without the data subject's consent if it is necessary for (amongst other things) the pursuit of a legitimate interest by the employer or by a third party to whom the data is to be disclosed, unless disclosure would prejudice the rights and freedoms or legitimate interests of the data subject.
The disclosure of personal information in response to an equality of terms questions form is likely to be considered necessary for the pursuit of the legitimate interests of both the employer and the complainant. The employer has a legitimate interest in answering questions as fully as possible to try and resolve any dispute and the complainant has an interest in establishing his/her legal rights. But you must balance your interests against those of the comparator. If the comparator objects to disclosure, this will include taking a view about whether the complaint is frivolous or has no reasonable prospect of success. The weaker the claim, the less justification there will be for disclosure without the comparator's consent.
The Data Protection Act also contains a specific provision allowing disclosures made in connection with legal proceedings. Section 35(2) provides that personal data are exempt from the Act's non-disclosure provisions where the disclosure is necessary 'for the purposes of, or in connection with, any legal proceedings (including prospective legal proceedings)'. Arguably this affords you exemption from the non-disclosure provisions of the Act where you are satisfied that it is necessary for prospective legal proceedings.
Is it necessary to inform the comparator?
Yes, the data subject (i.e. the comparator) must be informed that the information is going to be disclosed.
Can the comparator prevent the information being disclosed?
Yes, but only in very limited circumstances. The comparator is entitled to ask an employer not to disclose the information on the ground that:
- It is likely to cause substantial damage or distress to him or her or another, and
- The damage or distress is unwarranted.
Depending on the specific circumstances, it is unlikely this exception will apply.
Implied duty of trust and confidence
There is an implied term in every contract of employment that an employer will not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between the employer and employee.
So far as we are aware, no cases have held that it is a breach of this implied duty to disclose information about a comparator's pay in these circumstances. Furthermore, it is strongly arguable that the disclosure of such information in response to a legitimate request under a statutory procedure for the purpose of establishing the complainant's legal rights constitutes reasonable and proper cause. Where there is reasonable and proper cause the implied duty of trust and confidence is not breached.
Practical advice on how to respond.
In the first instance, you should seek the comparator's consent to the disclosure. If consent is not forthcoming, there are several ways you could approach the matter:
- It may be possible to disclose the information in an anonymised form. This may well be possible where more than one comparator has been named.
- Alternatively, you could deal with the request in general terms, for example, by confirming that the comparator's pay is above a certain rate.
- You could ask for an undertaking from the complainant that s/he will keep disclosed information confidential for purposes other than pursuing an internal complaint or subsequent proceedings.
Each request should be considered on its merits. Provided you are satisfied that the complainant's request is legitimate and that the information is necessary to enable the complainant to establish his/her legal rights, you may decide it is appropriate to make the disclosure.
What should you do if you are unable to reply to a particular question?
The questions form gives you an opportunity to explain why you have chosen not to reply to a particular question. It is important that you give reasons form your refusal to answer any question and that these are both genuine and clear.
Whether you have a 'reasonable excuse' for not providing certain information will depend on the circumstances of the case. Relying on a comparator's refusal or reluctance to allow his/her salary details to be disclosed may not be regarded as a reasonable excuse. It is likely to depend in part on what efforts you made in practice to provide helpful information in response to the questions. It would also not be a reasonable excuse to say that you did not reply for 'policy reasons'.
Requests for disclosure during tribunal proceedings
During the course of tribunal proceedings, a complainant may apply to the tribunal for an order for disclosure of certain information, some of which may be confidential.
Does a tribunal have the power to make such an order?
Yes. Once proceedings have been commenced, a tribunal has the power to order a party to the proceedings to provide written answers to any questions it considers appropriate and/or to disclose any documents that are necessary for the fair disposal of a case. Depending on the circumstances of the case, this could include wages and personnel records.
Is an exception made in relation to 'confidential' information?
No. Confidentiality alone is not a ground for refusing disclosure although in exercising its discretion a tribunal may have regard to the fact that the information or documentation is confidential.
If appropriate, the tribunal may inspect the information / documentation first and decide whether justice can be done by adopting special measures, such as 'covering-up' or substituting anonymous references for specific names, or, in rare cases, holding the hearing in private. It is most unlikely that the latter step will be necessary or appropriate in an equal pay (equality of terms) claim.
Does the Data Protection Act 1998 permit the disclosure of personal data under a court order?
Yes. The Data Protection Act 1998 specifically provides for disclosure where this is required by a court/tribunal order.
Nevertheless, an element of fairness should still be applied. For example, if you know it is likely you will have to make a disclosure of this nature at some point, it would be appropriate to notify the individual concerned beforehand.
Is information disclosed under a court order subject to any special protection from further disclosure?
Yes. The court rules require that a party to whom documentation or information is disclosed may only use it for the purpose of the proceedings in which it has been disclosed unless:
- It has been read to or by the court at a public hearing; or
- The court gives permission; or
- Both the party who disclosed the document and the person to whom it belongs agree.
However, even where the first of these exceptions applies, the court has the power to make an order restricting or prohibiting the further use of the document.
Note that these rules apply if a case is settled or withdrawn without a public hearing taking place.
Disclosing information on a voluntary basis during the course of tribunal proceedings.
If you decide to disclose confidential information on a voluntary basis during the course of tribunal proceedings, you should consider seeking an undertaking from the complainant or her/his representatives to the effect that s/he will only use the information for the purpose of pursuing proceedings.
About the Equal pay in practice checklists
Whilst every effort has been made to ensure that the advice given in this note is accurate, only the courts and tribunals can give authoritative interpretations of the law.
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