A new Equal Pay bill has been put before parliament. Supported by the equality group the Fawcett Society, it would give employees the ability to make a “right to know” request obtain information related to pay of a comparator. The information which could be requested would potentially include salary, benefit, bonus, overtime, allowances in respect of shift working and standby time, bank holidays and time off in lieu, attendance pay and performance related pay. There is also proposed to be a less specific catch all of “any other terms related to equal pay”. If an employee was requesting information about something which was not a contractual term (entered into between the employer and the comparator) the provisions propose that the employer would make a statement to that effect.
The bill envisages that employees would be permitted access to a comparator’s Form P60 as well as job descriptions and job evaluation studies carried out by the employer. Employees would have the ability to make multiple requests in respect of different comparators.
The proposed timeframe for employers to respond to such a request is very short – 20 days (except in exceptional circumstances). If employers fail to comply with this, the bill proposes that:
- they receive a penalty notice requiring them to pay a financial penalty within a further 20 days;
- the Tribunal consider ordering full costs and expenses if the individual goes on to make a successful application for disclosure in the Tribunal; and
- the Tribunal may order that the material factor defence is not available, to the extent that the employer has not provided information about particular terms.
The proposal is that those costs would be paid within 28 days and if a respondent failed they would be debarred from defending a subsequent claim.
The bill also proposes some changes in respect of time limits, remedies in non-pension cases, mandatory employment terms required to be set out in writing by Section 1, Employment Rights Act, gender and ethnic pay reporting.
Over the past few years many employers have seen an increase in data subject access requests. If the Equality Bill proposals went through we would expect them to be less onerous to comply with than data subject access requests, but potentially give rise to greater enforcement risks. The information should largely be obtainable from payroll data and be less onerous to collate. However, it is also likely to be sensitive and that may require a shift in cultural norms. The potential for a job evaluation survey to be disclosed with little contextual comment could deter employers from completing such exercises which would be counter productive.
At present the bill has had its first reading in the House of Lords. It has some way to go before potentially being implemented. It is likely that the bill would emerge from the legislative process in a more balanced form than identified above. We will need to wait to see how it progresses…