This Private Members Bill proposes to enhance current rights for employees to help protect them from unequal pay.
Amongst other things, the Bill seeks to provide employees with a right to obtain information relating to the pay of a comparator, amend written statements of particulars to include equal pay and to require certain employers to publish information about the differences in pay between male and female employees and between employees of different ethnic origins. Whilst it is still early days of the bill, we provide our initial thoughts on all the aspects of the Bill in its current shape (Equal Pay Bill [HL] (HL Bill 65))
1. Right to Know
The Bill proposes that if an employee or worker suspects that a person or group of people is a comparator, then they will have a right to know information about the pay, benefits and other relevant information of that person or group. Such a request could be made to an employer or former employer and the employer must respond within 20 working days. Then, if the employer did not respond to the request, the employee may apply to a court or tribunal for disclosure of information as part of an equal pay claim where there may be subsequent costs consequences for the employer.
This means that, in a similar fashion to receiving a data subject access request, employers would have to grapple with how best to respond to requests for information about a comparator's pay and benefits and how such information is to be presented. It would also raise data protection concerns, for to provide information about a third party's personal data would carry the risks of potential data breach. We must wait and see if the Bill will address these potential data protection concerns.
2. Time limits
The proposed time limits amendment would allow the employment tribunal discretion to extend the time limit of 6 months for bringing an equal pay claim if they think it is just and equitable to do so. This brings it in line with the extension of time limits for other breaches of the Equality Act 2010, and, on the face of it, would not seem too controversial.
Changes to remedies so that women can receive damages for personal injury and injury to feelings for equal pay claims is, again, designed to bring the regime in line with other discrimination claims. Given that equal pay claims are, at heart, discrimination claims, such a change can be observed to be a natural extension of the current equal pay regime.
4. Statement of particulars
A proposed new requirement to include information about an employee's right to equal pay for equal work into the statement of particulars fits with the current trend for greater transparency in relation to pay and seems to be a sensible step forward.
5. Gender and ethnic origin pay gap reporting
A proposed new requirement to include ethnic origin pay gap reporting into gender pay gap reporting thus requiring employers to publish data on how ethnicity and gender intersect in terms of pay is likely to be seen as heavily onerous. It would additionally apply the reporting requirements for gender and ethnicity to organisations employing between 100 and 250 employees. In addition to the right to know requirement, this will bring a lot more scrutiny and burden to employers in their gender pay gap reporting.
There is no doubt about the financial implications for employers of the proposed bill if it were passed and implemented. We also foresee a new dimension to the Employment Tribunal litigation as the proposed bill is certain to bring about behavioural changes of employees.
Click here to read the Equal Pay Bill.
Click here to read the Explanatory Notes.