[2023] UKUT 221 (AAC)

that the FTT decision did not adequately explain why

that it was perverse, in its reasoning at [24] as to whether EHRC gave Ms Powell the advice and assistance required under s16, for the FTT decision to have found that Ms Powell wanted (only) “specific information about her colleagues’ pay in comparison with her own”: this appears to ignore Ms Powell’s 3 May 2019 request for information – that EHRC apply its pay gap method to the data and provide the results. To some extent, this arguable error may be a consequence of the arguable error described above, in that the FTT decision had found that the “additional” request for information could be “unravelled” to disclose personal data. However, it is arguable that, even if the arguable error described above was not made out, it was in any case perverse, given the terms of Ms Powell’s 3 May 2019 request, to find that Ms Powell wanted only specific information about her colleagues’ pay, rather than information in more generic form. Such an error would arguably have been material in that it prevented the FTT from going on to consider whether advice or assistance was provided in the format in which, the FTT found in its reasoning at [24], it was usually given: “limiting or re-framing the request so that it can be legally complied with”.

that the FTT decision’s reasoning at [23], when considering whether processing (what it found to be) personal data was “necessary” for the purposes of the “legitimate interests” pursued by Ms Powell, was inconsistent with its findings at [21] as to what those legitimate interests were: at [21], the decision “accepted” that Ms Powell had “a legitimate interest in requesting the information” (emphasis added, as the information she requested concerned the Birmingham office of EHRC (only)) – however, in [23] the FTT decision referred to the “legitimate interest of knowing how the EHRC is performing in regard to gender pay gaps. This interest is covered by the publication of figures in respect of the whole organisation” (emphasis again added, to illustrate that in [23] the FTT decision regarded Ms Powell’s legitimate interests as limited to pay gap information about EHRC as a whole). Such an error would arguably have been material as, had the FTT decision adopted a view of Ms Powell’s legitimate interests consistent with its finding at [21], it may have found that processing was “necessary” for the purposes of those interests – in which case the FTT would have had to go on to conduct a “balancing exercise” (which, due its conclusions at [23] about “necessary”, it failed to do).