Equal pay questionnaire
At present, under the Equality Act 2010, an employee who thinks they have a claim for equal pay can submit questions to their employer to help them determine if they have a claim. An employee can, but is not required to, use the statutory equal pay questionnaire. An employment tribunal has no power to order an employer to reply but can draw such inferences that it considers just and equitable from their failure to do so.
The idea is that the information should help to establish key facts early on and make it easier to resolve any disputes in the workplace. If the individual decides to take a case to an Employment Tribunal, this information should enable the complaint to be presented in the most effective way and the proceedings should be that much simpler because the matters under dispute have been identified in advance.
The government is currently proposing to repeal this questionnaire procedure, but at present it remains in force.
The focus of the questionnaire is on establishing whether an individual is receiving less pay and whether the employer agrees that the people being compared are doing equal work. In the questionnaire, the term "equal work" is used to describe work that is the same or broadly similar (known as "like work"), work that has been rated as equivalent under a job evaluation study, or work of equal value.
The questionnaire includes:
- a statement of why the individual thinks they are not receiving equal pay, followed by a statement of who they believe their comparators are;
- factual questions to ascertain whether they are receiving less pay than their comparator and, if so, the reasons why;
- a question on whether the employer agrees that the people being compared are doing equal work or work of equal value; and
- space for their own questions.
The questionnaire includes an 8-week time limit for employers to respond, with the tribunal being able to draw inferences if it was not returned within that time.
The guidance on completing the form is set out alongside the questions. Further advice is provided at the end of the document.
The questionnaire contains a small number of standard questions. These are:
- whether the complainant has received less pay than their comparator (s) and, if so, why; and,
- whether the employer agrees that the people being compared are doing equal work or work of equal value.
Complainant's own questions
Space has been provided for the complainant's own questions. The guidance alongside gives examples of questions a complainant may want to consider asking.
How does the questionnaire work in practice?
Employers are not under a statutory obligation to provide answers to the questionnaire, but an Employment Tribunal will be entitled to draw inferences from a deliberate refusal to answer or from an evasive or equivocal reply. The equal pay questionnaire includes an 8-week time limit for employers to respond.
Under Section 138 of the Equality Act 2010, a person is entitled to write to his or her employer asking for information that will help establish whether he or she has received equal pay and, if not, what the reasons are.
The equal pay questionnaire has been devised so that the complainant can send questions to the respondent. The matching reply form gives the respondent an opportunity to say whether they agree with the complainant, and, if not, they can set out the reasons why. Although questions and replies can be conducted by letter, the use of the questionnaire will help ensure that relevant questions are asked.
What if the employer is asked to disclose confidential information?
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 as there is no general legal principle that pay information is confidential and the disclosure may be permitted under section 35(2) of the Data Protection Act 1998 as it is “necessary in connection with any actual or prospective legal proceedings, or is otherwise necessary for the purposes of establishing, exercising or defending legal rights”.
In some cases, employers may not feel able to disclose specific information that they believe is confidential.
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