Upper Tribunal Administrative Appeals Chamber

[2023] UKUT 221 (AAC)

Fecha: 03-Ago-2023

IC’s submissions on ground a

IC’s submissions on ground a.

27.

IC submitted that the information requested on 3 May 2019 comprised

six percentage figures that make up a “gender pay gap analysis” under the Gender Pay Regulations (as defined in the IC decision notice – see paragraph 13 above); and

the mean and median salary figures that typically make up an “equal pay analysis”; in this regard, IC pointed to page 4 of EHRC’s Our gender gap report (snapshot date 31 March 2019), which was in the FTT’s bundle of papers, headed Gender pay gap data, and which states the mean hourly rate (£23.12 for both men and women) and the median hourly rate of pay (£21.63 for both men and women).

28.

IC’s primary argument was that the median salary figure was included in the “equal pay analysis” and this, as the FTT decision explained at [17], could lead to identification of the pay of one male and one female employee.

29.

IC’s secondary argument was that, even if “equal pay analysis” was not part of the requested information, Ms Powell would still be able to ascertain personal data by combining percentage figures from the “gender pay gap analysis” with information about salary bands disclosed by EHRC. In its “response” of 12 December 2022, IC set out two ways in which this could be done:

the first used the “pay quartile” percentage figures (i.e. percentage of men and women, respectively, in each of the four pay quartiles). IC submitted that, because of the relatively small number of employees in Birmingham, someone with familiarity with the broad job ranking within the office could probably identify some individuals with one of the pay band ranges that had been disclosed by EHRC

the second used the “gender pay gap” percentage figures i.e. the difference between men’s and women’s pay (either mean or median), as a percentage of men's pay. IC submitted that from the “gender pay gap” percentage, based on mean salary, combined with the figure for total spend on annual salaries for the EHRC Birmingham office (as disclosed by EHRC), one could produce figures for mean annual salary for both men and women. That could be multiplied by three (the number of female employees) to derive the total salaries paid to women. Ms Powell could then subtract her own salary and would then know the total of the salaries of the other two women. At this point, the IC’s submission surmised that Ms Powell “would have been highly likely to have known” the salary of at least one of her two female colleagues, so enabling her to derive the salary of the third woman. Having worked out the pay of each of the female employees, Ms Powell could then, per IC’s submissions, work out the medianmale salary, using the median “gender pay gap percentage”; this would correspond to an individual’s actual salary, and, IC argued, given the small number of employees and Ms Powell’s knowledge of the office, she would be able to identify the individual in question.

30.

IC further submitted that there were likely to be other ways in which an individual and his or her salary could be identified, were the percentage figures from the “gender pay gap analysis” to be made public. In this regard, IC asserted that Ms Powell was likely to have knowledge of at least some salaries other than her own (although IC acknowledged there was no evidence to this effect).