Legal Q & A: Equal pay questionnaires

Diane Nicol, partner, McGrigor Donald offers guidance on equal pay questionnaires.

Q When can equal pay questionnaires be served and must employers respond?

A As of 6 April, S42 of the Employment Act 2002 allows people who consider they may have a claim under the Equal Pay Act 1970 to serve a questionnaire either to an employer who is already the subject of tribunal proceedings, or which may subsequently become the subject of tribunal proceedings, to find out what their colleagues are earning.

They are designed to assist potential claimants decide whether to bring a claim in the first place, and to present that claim effectively if they decide so.

The questionnaires are similar in format to those available under other discrimination legislation, and while there is no statutory obligation on employers to respond, negative inferences may be drawn by tribunals where there has been deliberate failure to respond within a time limit of eight weeks, or where the response is evasive in the absence of a reasonable excuse from the employer.

Q What are the pitfalls in disclosing information on pay and bonuses to other employees?

A Undoubtedly, one of the challenges for employers responding to equal pay questionnaires will be to ensure they do not breach confidentiality obligations and data protection legislation when staff ask for specific salary, bonus and benefit details of any named comparator/comparators.

The safest route is to ask the named comparator(s) to consent to the employer revealing such information to the questioner, but this may not be forthcoming.

Where it is not, consideration could be given to providing details of salary and bonus ranges for relevant groups of employees without identifying individuals. Employers should avoid blanket refusals to respond to questionnaires on the grounds of confidentiality as tribunals are likely to view that as suspicious.

Q Will employees be able to serve questionnaires on another employer where there is a legitimate comparison?

A The legislation does not provide for serving of a questionnaire on another employer, but staff may question their own employers about the other employer. That said, this may allow their own employer to decline answering such questions where it is not practicable to obtain such information, but each case will need to be carefully considered on its own particular facts.

Q Are there any steps employers can take to limit risks of falling foul of equal pay legislation as a result of these questionnaires?

A Among other things, employers should:

- Consider auditing existing reward structures and previous decisions relating to salary increases and bonus awards

- Ensure transparency in relation to pay and bonus structures

- Ensure that pay and bonus structures are robust and that increases and awards are always made on an objectively justifiable basis; and

- Ensure any past complaints about disparity in pay and benefits have been fully dealt with. If they not, they should be dealt with now as a matter of urgency.