Legal Q & A: Equal pay questionnaires

By Diane Nicol, partner, McGrigor Donald

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

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

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

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

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