Equal pay questionnaire introduced

Michael Rubenstein offers expert guidance on the new statutory questionnaire procedure for equal pay cases, which came into force on 6 April 2003.

The questionnaire, introduced by statutory instrument¹ under the Employment Act 2002, is "intended to help people who believe they may not have received equal pay to obtain information from their employers to find out whether this is the case and, if so, why". The Department of Trade and Industry's Women and Equality Unit has published guidance notes² on the questionnaire.

The new provisions bring the law in respect of equal pay into line with sex, race and disability discrimination, where a questionnaire procedure is already available. The main reason a questionnaire procedure has not been introduced hitherto in respect of equal pay is that there are issues of confidentiality relating to an individual's pay. This is discussed below.

Complainant's questions

The statutory questions to the employer, and the employer's reply, are set out in the box below. The Women and Equality Unit's guidance suggests that complainants should give a short summary of the reasons "that cause you to believe that you may not have received equal pay", and the names or job titles of comparators.

Question 4 allows the potential complainant to ask any other relevant questions. The guidance suggests that complainants may want to know:

"details of how pay is determined for you and your comparator(s) within the organisation, eg details of pay schemes, job grading systems or how skills and experience are reflected in the pay system;

information relating to the pay and benefits package of you and your comparator(s), eg basic pay, benefits such as company car, private health insurance and occupational pension;

whether your employer thinks there are significant differences between your duties and those of your comparator(s);

details of the duties (eg job description and person specification) of your post and the post(s) of your comparator(s); and

whether the organisation has an equal opportunities policy and what steps have been taken to implement the EOC's Code of Practice on Equal Pay."

The last question in particular, by virtue of its inclusion on a statutory questionnaire, is likely to spur employers to at least to consider the EOC's Code and the issues therein.

The employee must serve the questionnaire before issuing equal pay proceedings in the tribunal or within 21 days of issuing the proceedings, or any longer period that the tribunal may on application allow.

Respondent's reply

The guidance notes accompanying the form for the employer's reply emphasise that in order to explain why they disagree with the complainant's statement, the employer "will need to know what is included within the concept of equal pay; in what situations the Act makes unequal pay unlawful; and what defence the Act provides to an employer".

The Order provides that employers have eight weeks from the day that a questionnaire is served to provide a response to it. Although completion of a questionnaire is not compulsory, an employment 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 which is evasive or equivocal.

"Confidential" information

The respondent's reply allows questions, or parts of them, to be deleted because the employer is "unable" or "unwilling" to reply. The employer is given space to explain its reasons for not answering the question.

The guidance from the Women and Equality Unit contains a separate section: "What if the employer is asked to identify confidential information?" This states:

"Employers are expected to answer the questionnaire as fully as possible. However, sometimes they may be asked to provide information that is confidential to another person. For example, the complainant might ask for exact details of a colleague's pay package or appraisal review. If the information is confidential, and that colleague does not want it to be disclosed, the employer will need to consider how much information can be given.

"It is likely that in many cases employers will be able to answer detailed questions in general terms whilst still preserving the anonymity and confidence of their workers. For example, they could describe groupings on a pay scale, or confirm that a comparator's pay is above a certain rate. Where more than one comparator is named, information could be provided in an anonymised way. If only one comparator is named, employers could provide some of the information being sought in a generalised fashion - for example by explaining more fully how the pay system operates. Much of the information requested will not be confidential. For example, it could include details of pay schemes and job grading systems, job descriptions, or how skills and experience are reflected in the employer's pay system.

"The questionnaire does not alter the common law duty of confidence that all employers have towards their employees. Certain information about individuals is protected by the common law of confidence and the Data Protection Act 1998 (DPA). Where information is confidential, an employer would only be able to disclose the information if he had the consent of the individual in question, where he had a legal obligation to do so, or where there was a strong public interest requirement. For advice on specific issues relating to data protection, an employer may wish to refer to the Information Commissioner.

"In some cases employers may not feel able to disclose specific information that they believe is confidential. If the case proceeds to a tribunal complaint, tribunals may order disclosure of relevant information if they believe it is in the interests of justice to do so."

The key passages above relating to when information can be withheld as confidential are obviously carefully worded but, quite frankly, somewhat misleading in the impression given. It implies, without ever stating, that as a matter of law a work colleague's salary may be confidential. On analysis, however, all that is stated is a tautology: certain information is confidential, and if it is confidential, it cannot be disclosed without consent - but without ever stating in what circumstances this information will be regarded as confidential. Similarly, reference is made to the spectre of the DPA without ever actually asserting that salary information is protected from disclosure by that legislation.

It is by no means clear what the legal basis is for the government's view that salary information may be confidential in this context. There is, of course, considerable law on information which is confidential to the employer and must not be disclosed by the employee, but information as to a person's own remuneration does not fall into that category. Nor is the information given in confidence as between the parties: it is not communicated to the employee in circumstances importing an obligation of confidence; nor does the employee say to the employer, "I agree to this salary increase but do not tell anyone else about it."

The courts have been clear that where there is a contractual relationship, the obligation of confidence is derived by construing the contract and any terms implied in it. Contracts of employment do not expressly make salary information confidential, and thus the only basis for regarding salary information as confidential is that disclosure of it by the employer would be a breach of the implied term of mutual trust and confidence. Presumably, this is what is meant when the guidance refers to "the common law of confidence". Yet, so far as we are aware, there are no cases which have held that it is a breach of the implied term of trust and confidence for an employer to disclose an employee's salary information to a third party, and it is difficult to see how there would be such a breach where the disclosure is made in order to comply with a request made under a statutory procedure.

Similarly, there is nothing in the DPA which expressly precludes an employer from disclosing an employee's salary for the purposes of an equal pay questionnaire. Information about an employee's salary is personal information for data protection purposes, but it does not fall within the category of "sensitive" personal data. Moreover, s.35(2) of the DPA expressly provides that personal data are exempt from the Act's non-disclosure provisions where the disclosure is necessary "for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings)".

The recent and highly-publicised EAT decision of Barton v Investec Henderson Crosthwaite Securities Ltd, to be discussed in the next issue of EOR, is categoric that "no tribunal should be seen to condone a City bonus culture involving secrecy and/or lack of transparency . . . as a reason for avoiding equal pay obligations." After Louise Barton's successful case, it is all but inevitable that tribunals will regard disclosure of a comparator's salary as necessary in the interests of justice, unless the claim itself is seen as frivolous or having no reasonable prospect of success.

Prudent employers may well take a similar approach. An employer that considers that a request on an equal pay questionnaire for details of a named work colleague's remuneration package is one which is frivolous or is a non-starter can refuse to provide the detail of a comparator's salary on those grounds. Relying on the comparator's refusal to "allow" the information to be disclosed obviously is likely to increase the chances of a tribunal claim being brought, and may not be regarded as a "reasonable excuse" for not providing the information.

¹ Equal Pay (Questions and Replies) Order 2003, SI 2003 No.722.

² www.womenandequalityunit.gov.uk./pay/consultation/equ_pay_que_1905.doc.

Question Form (for complainant) To ………………………………………………………………………………………………………. (Name of the person to be questioned (the respondent)) of (Address) ……………………………………………………………………………………………. 1. I ……………………………………………………………………………………………………….. (Name of complainant) of (Address) …………………………………………………………………………………………….. believe, for the following reasons, that I may not have received equal pay in accordance with the Equal Pay Act 1970. (Give a short summary of the reason(s) that cause you to believe that you may not have received equal pay.) ……………………………………………………………………………………………………………. 2. (a) I am claiming equal pay with the following comparator(s) …………………………………… (Give the names or, if not known, the job titles, of the person or persons with whom equal pay is being claimed.) (b) Do you agree that I have received less pay than my comparator(s)? (c) If you agree that I have received less pay, please explain the reasons for this difference. (d) If you do not agree that I have received less pay, please explain why you disagree. 3. The Equal Pay Act requires equal pay between men and women where they are employed on equal work, which comprises like work, work rated as equivalent, or work of equal value. (a) Do you agree that my work is equal to that of my comparator(s)? (b) If you do not think that I am doing equal work, please give your reasons. 4. (Any other relevant questions you may want to ask.) ……………………………………………. 5. Please send your reply to the following address if different from my home address above. (Address) …………………………………………………………………………………………………. (Signature of complainant).(Date) …………….. By virtue of section 7B of the Act, this questionnaire and any reply are (subject to the provisions of the section) admissible in proceedings under the Act and a tribunal may draw any such inference as is just and equitable from a failure without reasonable excuse to reply within eight weeks or from an evasive or equivocal reply, including an inference that the person questioned has discriminated unlawfully. Reply Form (for respondent) To …………………………………………………………………………………………………………. (Name of questioner (the complainant)) of (Address) ……………………………………………………………………………………………… 1.       I ………………………………………………………………………………………………………. (Name of respondent) of (Address) ……………………………………………………………………………………………… acknowledge receipt of the questionnaire signed by you and dated ………… (Date) which was served on me on …………… (Date) 2. Set out below are the complainant's questions and my response to them. (a)            Do you agree that the complainant has not received equal pay in accordance with the Equal Pay Act 1970? ……… (yes/no*) (If you do not agree with the complainant's statement, you should explain why you disagree.)…………………………………………………………………………………………………. (b) Do you agree that the complainant has received less pay than his or her comparator(s)? …… (yes/no*). (If you agree, you should explain the reasons for any difference in pay. If you do not agree, you should explain why you disagree.) ………………………………………………………. (c) Do you agree that the complainant is doing work equal to that of his or her comparator(s)? ……. (yes/no*). (If you do not agree, you should explain why you disagree.) ……………………….. (d) (Replies to the questions in paragraph 4 of the questionnaire.) ……………………………….. 3. I have deleted (in whole or in part) the paragraphs numbered ………. above, since I am (unable/unwilling*) to reply to the corresponding questions of the questionnaire ……….. (Give question numbers from questionnaire) for the following reasons: (Give reasons) ………………….. (Signature of respondent) ……………………………………………………. (Date) ………………. (*) delete as appropriate.