The Equality and Human Rights Commission (EHRC) has recently responded to a call for evidence on equality law. It has suggested that the duty on employers to respond to employee requests for information on pay comparators within their organisations be reinstated. This duty previously formed part of the Equality Act 2010, but was repealed in April 2014.
The “statutory question”
The “statutory question” refers to the now-repealed section 138 of the Equality Act 2010 (section 138), which was in force until April 2014.
Under the law, employees had the right to send a prescribed question and answer form to their employer regarding discrimination in the workplace, including unequal pay disputes. This information tended to be used by claimant employees to assist with discrimination claims. If an employer failed to provide a clear answer, or refused to respond altogether, an employment tribunal could draw an adverse inference from a failure to respond adequately.
When the provision was repealed, the EHRC introduced non-statutory guidance to support informal questioning.
The call for evidence
In April 2025, the Office for Equality and Opportunity launched a call for evidence in relation to a variety of equality laws, particularly in view of the upcoming Equality (Race and Disability) Bill and the previous consultation launched in respect of it.
EHRC’s response
EHRC, as Britain’s national equality body and a national human rights institution, issued a public response to the call for evidence which set out a series of recommendations with regard to the various pay gaps identified. This included the 7% gender pay gap and 12.7% disability pay gap.
One suggestion from EHRC was that the government consider reintroducing section 138 and the benefits to both employers and employees that this could bring. The response notes that, at present, employees seeking to bring discrimination claims are required to identify a comparator, which particularly poses issues for claimants seeking to bring equal pay claims as employees are unlikely to know how much their colleagues are paid. It also highlights the fact that the equal pay scheme is particularly difficult to navigate for claimants with no legal representation. Reintroducing the “statutory question” would provide a legal basis for claimants to ask questions of their employer which would assist them in bringing a claim.
What could this mean for employers?
Whilst the reintroduction of section 138 is merely a suggestion at this stage, its reintroduction could pose concern for employers. EHRC highlighted the need to ensure that any provision to reintroduce section 138 would have to be carefully balanced against data privacy concerns around the sharing of sensitive personal data. Moreover, some employers are reportedly concerned about the administrative burden that reintroduction of the duty could place on HR professionals.
Reintroduction of section 138 could aid employees in bringing equal pay claims which, in light of the recent developments following the EU’s Pay Transparency Directive, may become more prevalent. It could also help HR professionals to streamline processes for providing information to discrimination claimants and reduce administrative burden.
