Employers seeking to protect themselves against claims for sex discrimination by completing equal pay questionnaires submitted by employees risk breaching the Data Protection Act, says Reynolds Porter Chamberlain (RPC).

Employees who suspect that they may have a claim under the Equal Pay Act 1970 can now submit a questionnaire to their employer requesting information on the pay of a comparable colleague, either by name or by job title.

However, according to RPC, information on the pay of the comparator constitutes confidential personal data which under the Data Protection Act should only be disclosed to a third party in accordance with strict guidelines.

Geraldine Elliott, Head of Employment at RPC says, “There is no legal obligation on the employer to respond fully, or at all, to an equal pay questionnaire. For companies with equal and fair pay policies who have nothing to hide, not disclosing the pay information could pose two problems.”

“If they don’t disclose, it will be harder to prevent a case going unnecessarily to an employment tribunal in the first place. Then, once a claim is made, the tribunal can draw its own inferences from a company’s failure to provide adequate answers to the questionnaire.”

RPC says that one way an employer can disclose information on an individual’s pay is with their written permission. However, because remuneration is often a contentious issue, and the information could subsequently be disclosed in tribunal proceedings, consent is likely to be withheld.

According to RPC, companies may be able to avoid breaching the Act by maintaining the anonymity of a comparable employee, for example, by providing general information such as details of how the pay scheme operates or how job grading systems work, rather than data on a specific individual.

However, says Elliott, “In smaller businesses, where there are fewer comparable colleagues, anonymity is likely to be much more difficult to ensure. If the employer is unable to disclose confidential information because they can’t get consent, they should say so when responding to the questionnaire or an employment tribunal is far more likely to come to a negative conclusion.”

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