Upper Tribunal Administrative Appeals Chamber

[2023] UKUT 221 (AAC)

Fecha: 03-Ago-2023

REASONS FOR THE DECISION

REASONS FOR THE DECISION

References in what follows to

“sections” or “s” are to sections of the Freedom of Information Act 2000 (unless otherwise indicated)

the “FTT” are to the First-tier Tribunal

the “FTT decision” are to the FTT decision under reference EA/2020/0137, promulgated on 16 December 2020, and dismissing the appeal under s57 of the Appellant (“Ms Powell”) against a decision notice (the “ICdecision notice”) of the Respondent (“IC”) dated 3 March 2020

numbers in square brackets are to paragraphs of the FTT decision

“EHRC” are to the Equality and Human Rights Commission

This is an appeal against the FTT decision, which found that the IC decision notice was in accordance with the law. The FTT decision followed a hearing (by video) on 8 December 2020.

The IC decision notice related to certain information requested by Ms Powell from EHRC (a public authority), as follows:

on 15 March 2019, Ms Powell wrote to EHRC asking for “details from the Birmingham EHRC office, Victoria Square House, namely by, employees in post by grade/name, job title and salary as at 9 February 2017”;

EHRC responded on 25 March 2019, providing the number of employees at each pay grade and the details of the “width” of each pay grade. EHRC refused to provide more detailed information, relying on s40(2);

on 3 May 2019, Ms Powell submitted (to EHRC) what the IC decision notice called “a further request for information”:

“Can you apply EHRC’s pay gap method to the data and provide me with the results”

EHRC responded on 28 August 2019; per the IC decision notice, EHRC stated that it held the information requested, but that it was exempt from disclosure under s40(2).

The background to Ms Powell’s requests was set out at [1-4]: Ms Powell was employed by EHRC for about nine years and was made redundant, along with five colleagues, in 2017. She challenged this in the employment tribunal but those proceedings were settled on the advice of the union solicitors advising her. Per the FTT decision, Ms Powell believes she was unlawfully underpaid for most, if not all, of her employment by EHRC. Ms Powell told the FTT that she was negligently advised to settle her employment tribunal claim and that she wished to explore the possibility of legal action against the union solicitor. The FTT decision said that Ms Powell believed that, if the information sought were provided to her, it would confirm that she had been unlawfully underpaid and that could form the basis of a claim against her solicitor. At [14], the FTT decision stated that Ms Powell strongly believes that she has been illegally underpaid for several years, and wants the requested information because she believes this information will evidence this.

The IC decision notice concluded that the information requested was personal data (of which Ms Powell herself was not the data subject) and that the first condition in s40 (personal information) was satisfied by reason of s40(3A)(a) being satisfied – and so the requested information was exempt information which EHRC was entitled to withhold. It also concluded that EHRC complied with s16 (duty to provide advice and assistance).