The $64,000 questionnaire
3 February 2003
Section 42 of the Employment Act 2002 is due to come into force in April 2003 and introduces a questionnaire procedure for use in equal pay claims. Under the new legislation, a complainant who believes they may have a claim under the Equal Pay Act 1970 will be able to question their employer (the respondent) before deciding whether to proceed with a claim and, if they do so, to present their claim more effectively.
The questionnaire may be served prior to or within 21 days of a claim's presentation. Leave of the Employment Tribunal is otherwise required. The employer must respond within eight weeks of receiving the request and the answers can be used as evidence at the employment tribunal. The tribunal can also draw inferences from a respondent's refusal to answer, or from the provision of equivocal or evasive responses.
Practitioners who are asked for guidance on such a request need to consider a number of complex issues. The complainant may seek specific salary details and other personal information relating to the terms and conditions of employment of a potential or actual comparator. However, the Data Protection Act 1998 restricts the extent to which an employer can "process", and therefore disclose, information about its employees to third parties. It would be prudent not to disclose personal data without the consent of the subject or an order of the employment tribunal.
The questionnaire also has a retrospective effect. If the applicant presents their claim within six months of the termination of employment, there is nothing to prevent them from seeking to compare their work with that of a comparator employed many years earlier.
In the case of Kells v Pilkington plc, the Employment Appeals Tribunal (EAT) confirmed that there is no rule of law restricting the period of events in respect of which an equal pay comparison can be made to six years before the date of the application. This is because Section 2(5) of the Equal Pay Act (read in conjunction with the Levez v TH Jennings decision) is concerned with the period of default that can be compensated for, rather than the period during which a comparison is acceptable.
A respondent cannot therefore be entirely confident of avoiding claims relating to past events, albeit that the period in respect of which compensation may be recovered should make claims relating to events more than six years earlier unlikely.
It is clearly established that the scope of an equal pay enquiry is not confined to the applicant's own employer. This gives an applicant the ability to question their employer about the terms and conditions of someone employed by another employer.
The Equal Pay Act allows for a comparison between those employed by associated employers at the same establishment, or at different establishments where common terms and conditions are observed. To the extent that it is wider, the European approach of allowing comparisons between those employed in the "same establishment or service" is, in appropriate cases, adopted.
In both situations there is uncertainty as to where the line should be drawn. While the European Court of Justice (ECJ) decision in Lawrence v Regent Office Care has a limiting effect by introducing the concept of a necessary "single source" of employment terms, other decisions have not sought to limit the scope of the comparison in such a way.
A respondent may be able to establish a reasonable excuse for failing to reply to a questionnaire if it is not the comparator's employer, has no responsibility for the comparator's employment terms and cannot seek to explain those terms. However, clarification of the limits within which comparisons may form the basis of claims under the Equal Pay Act is also desirable to establish the parameters within which such questionnaires may legitimately be applicable.
Equal pay questionnaires will make it easier for a complainant to request key information from their employer at an early stage in the dispute, where otherwise such facts are often unclear or slow to emerge. But they are unlikely to assist the speedy resolution, or simplify the complexity, of equal value claims where the dispute will continue to focus primarily on the 'equal value' question.
Lorraine Heard is an employment partner at Dickinson Dees