[2023] UKUT 221 (AAC)

[14-25] fall under the heading “Findings, Reasons and Conclusions”.

At [15], the FTT decision states that Ms Powell “in her appeal and further submissions” accepted that the information requested was “personal information” (that term being the heading to s40). At [16] the FTT decision states: “However, during the hearing [Ms Powell] expressed some reservations as to whether her second request in May was a request for personal information”. The FTT decision says that Ms Powell referred to an report by EHRC called Our gender pay gapreport of 31 March 2019. The FTT decision states that “this is a published report which identified a mean gender pay gap of -7.5% in 2016/17 and a median gender pay gap of -3.0% in the same year”.

At [17], the FTT decision states that EHRC and IC “took a different view” (about whether the requested information was personal data). That was because “if the gender pay gap method was applied to the Birmingham office, which had only 8 people, it would be possible to identify the people involved. The Birmingham office had 3 women including Ms Powell and 5 men. It follows that, in this example, the median salary for men and women would be the salary of an actual male and female employee. In contrast, Ms Powell estimated that the total workforce of the EHRC in 2017 was about 160”.

[17] continued, stating the FTT’s view as follows: “The tribunal accepts that the process of identifying the median and mean pay for the 8 employees at the Birmingham office would allow for the identification of personal data. The process of establishing this is set out in [the IC decision notice] paras 31-35, which the tribunal accepts”. [18] then states in the first sentence: “It follows that the tribunal find the exemption of s40(2) applies to the request”.

Paragraphs 31-35 of the IC decision notice concern the statistical data required by the “Gender Pay Regulations” (defined at paragraph 29 as the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017). Paragraphs 29 and 30 explain that those regulations require that organisations employing 250 or more people publish