Does an employee who believes that she may have an equal pay claim have the right to be given information about her male counterparts' salaries?
An employee does not have the right to be given information about her male counterparts' salaries for the purpose of deciding whether or not she has a valid equal pay claim. However, if she does bring a claim, she may seek an order from the tribunal for disclosure of documents relating to comparators. The tribunal will consider the relevance of any documents before deciding whether or not it will order disclosure.
If an employee asks the employer for comparators' salary information before bringing proceedings, the employer may wish to disclose this, for example where it could show that the employee does not have grounds for a claim. However, there is a difficulty for employers in that salary information is regarded as confidential and is covered by the Data Protection Act 1998. This is a difficulty that has not yet been fully resolved by the courts and tribunals. In some cases, an employer may be in a position to disclose comparators' salary information while still preserving their anonymity. If a tribunal has ordered disclosure of information the employer will be disclosing it because it is necessary to comply with a legal obligation, and therefore will not be in breach of the Data Protection Act 1998.
Section 77 of the Equality Act 2010 makes pay secrecy clauses in an employee's contract unenforceable if the employee is involved in a discussion to establish if differences in pay exist that are related to a protected characteristic such as sex. While this provision means that employers cannot prevent employees from providing information about their salary to a colleague, employees are under no obligation to provide such information.