The equality watchdog has suggested the government could consider reintroducing equal pay questionnaires, a measure that could present HR functions with additional red tape when handling pay discrimination claims.
In its response to the Office for Equality and Opportunity’s call for evidence on equality laws, the Equality and Human Rights Commission said the government “may wish to consider what benefit reinstatement of section 138 of the Equality Act 2010 might bring to both employees and employers”.
But it added that if doing so, ministers should be “mindful of challenges around handling sensitive personal data subject to data protection law”.
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The coalition government repealed section 138 of the Equality Act in April 2014 through the Enterprise and Regulatory Reform Act, which sought to cut red tape for business.
Until then, section 138 provided employees with a legal basis to ask their employer for information on the pay of comparators in their organisation. Employment tribunals could then draw inferences of discrimination if an employer failed to reply within eight weeks, or if their answers were evasive.
In its recently published response to the equality law consultation, the EHRC said the equal pay scheme is “very difficult” for claimants to navigate. They may struggle to identify a comparator because they do not know how much their colleagues are paid.
“While individuals can request information from their employer, the lack of a statutory question and answer procedure means employers are not obliged to respond,” said the EHRC.
Joanna Ludlam, partner at law firm Jenner & Block, said: “Reinstating the questionnaire would certainly help claimants gather information. Any data protection obligations ought to be able to be overcome through anonymisation in most cases.
“However, the questionnaire system would be potentially very burdensome for organisations who would be forced to respond to questions even where claims lacked merit. This would be a potentially crippling administrative burden for already overloaded HR functions.”
Equal pay questionnaires
An EHRC spokesperson said: “The law on equal pay can make it difficult for employees to show that they have experienced pay discrimination. One reason for this is that employers are not required to inform staff about how much their colleagues are paid. If an employee wants to bring an equal pay claim, they can ask their employer to share this information but they are under no obligation to do so.
“Reintroducing a statutory question and answer procedure could mean employees are better informed about pay discrepancies in their organisation. Not only does this benefit staff, but it also helps employers to create fairer and more transparent working environments. As Britain’s equality regulator, we will continue to support employers to comply with the law and ensure that they understand their obligations around equal pay.”
A spokesman for the Discrimination Law Association told The Times: “The questionnaire procedure should not have been abolished. We pointed out its value when opposing abolition.
“The procedure enabled organisations to give early, clear explanations for treatment, and allowed individuals to seek them and focus their concerns. It encourages early dialogue between parties. This is in keeping with the drive to early conciliation and mediation. We welcome the proposed reintroduction.”
Patrick Milnes, head of people and work policy at the British Chambers of Commerce, said: “Employers recognise that fair and equitable workplaces make good business sense, while also bringing huge benefits to staff. However, adding more regulation onto firms would be the wrong move, particularly for SMEs who often don’t have huge HR and legal teams.”
He added that equal pay questionnaires could conflict with GDPR while creating more pressure and potential delays on an already overstretched tribunal system.
Sex, race and disability
Equal pay claims have so far only related to sex, typically where a woman believes a male colleague in a comparable role is being paid more. The Equality (Race and Disability) Bill aims to make the right to equal pay effective on the basis of race and disability as well.
The government has cited the Deaton Review of Inequalities, which found that Black Caribbean men are paid 13% less than white British men, while Pakistani and Bangladeshi men earn 22% and 42% less, respectively. It has also referred to disability pay gap figures from the Office for National Statistics (ONS), which show a 12.7% pay difference between disabled and non-disabled employees.
In its call for evidence response, the EHRC said: “The reintroduction of a statutory question and answer procedure may help claimants obtain relevant information about pay and comparators.
“However, it may also create challenges around the handling of data about ethnicity and disability. Information sought about a potential comparator in a claim may be sensitive information that an employee does not wish to disclose, and which is subject to data protection law restrictions.”
This might mean, for example, a disabled colleague not wishing to share information about their disability, or the race of a colleague being disclosed when it is not apparent.
A government spokesman said it is currently reviewing the responses to its call for evidence in order to better understand the efficacy and impact of its proposed measures.
The EHRC said any reintroduction of equal pay questionnaires would likely be subject to a full consultation, which employers could respond to.
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