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Baroness O'Cathain: May I ask for clarification on the clause? I am concerned about subsection (1)(a) of new Section 7B, which is at line 28. It refers to,
- "a person who considers that she may have a claim under section 1 above".
- "and, if she does so, to formally present her case in the most effective manner".
I raise this because I have personal experience of coming out on the wrong side of the Equal Opportunities Commission by supposedly favouring women over men. My noble friend's amendment was not gender specific and neither is the rest of the clause. Why was it in those instances?
Baroness Miller of Hendon: Before the Minister answers my noble friend's question, as I am sure he will, I say to the noble Baroness, Lady Turner, that my understanding, which may be incorrect, is that where there are comparators, they do not have to fill in the questionnaire with the name and address so that the person can be identified. I thought that they were able to compare and find out if somebody was getting equal pay without having to go down that route. That is an unusual route; we are not familiar with it. Unless my information is incorrect—I am sure that the Minister will tell me if it is—that answers the noble Baroness's point.
Baroness O'Cathain: In a very small organisation where two people do the same job, there would be a difference. I do not know how that would be covered.
Baroness Turner of Camden: The amendment states:
- "the right of privacy of any other employee of the respondent shall not be breached",
Lord McIntosh of Haringey: I am grateful for the way in which the amendments have been introduced, and I am glad to acknowledge the credentials of the noble Baroness, Lady Miller of Hendon, in this regard—they go back over a period of years. I add that I will lend her a copy of my book, Women and Work, which is based on research for the Department of Employment in the 1970s precisely on this point. I hope she will acknowledge that I, too, have a track record in this area.
The amendment seeks to ensure that an employee's right of privacy is not breached, specifically protecting their names and addresses. We do not need to go back over that point. Clearly names and addresses are not necessary if the comparators are a number of people, but they might be necessary if it is only one or two people. That is why there is the danger.
There must be a balance between the ideal of complete transparency—we want as much transparency as we can get in order to make the equal pay questionnaire work—and an individual's privacy. That is why our proposed questionnaire will not alter any common law duty of confidence that exists between employers and employees.
The amendment assumes that individuals have a "right of privacy" which must be protected. Unfortunately, it is by no means clear that a general "right of privacy" exists in United Kingdom law, particularly between private individuals. There has been a great deal of publicity recently about the balance between Articles 8 and 10 of the European Convention on Human Rights. That has been about issues of confidentiality rather than about the specific matter to which the amendment refers. However, it is clear that the law has never been entirely clear, and may not be entirely clear even after recent judgments.
There is an alternative. Certain information about individuals is protected by the common law of confidence and the Data Protection Act 1998. Where information is confidential, an employer would be able to disclose the information only if he had the consent of the individual in question, where he had a legal obligation to do so or where there was a strong public interest requirement.
We believe that the common law on confidentiality is the appropriate method to deal with issues of confidential information that might arise in the questionnaire. The common law already works. The noble Baroness, Lady Miller of Hendon, quoted the
Minister in the other place as using the phrase, "other areas". The other areas are existing questionnaires for sex, race and disability discrimination.Exactly the same issue arises there. If we were to change the legislation to introduce the concept of a right of privacy where the other legislation does not do so, we could be creating difficulties. We would expect employers to answer the questionnaire as fully as possible, and not to hide behind a blanket excuse of confidentiality, but we believe it would be very unusual for an employer to disclose confidential information in response to the questionnaire. We would not expect an employer to provide exact details of an individual's pay where the comparator did not consent or where the questionnaire was simply a fishing expedition to obtain details of a colleague's pay. We also think it unlikely that a tribunal would consider that an employer had acted unreasonably simply because he or she had erred on the side of caution and decided that it was not clearly in the public interest to disclose confidential information.
Of course, the tribunal can order the disclosure of this confidential information if the case proceeds formally. This is exactly the same position with the existing discrimination law questionnaires, to which I referred. In those cases, employers might be asked to provide information that is subject to a common law duty of confidentiality. They have to consider whether it is appropriate, in the circumstances, to disclose the information. If they are not prepared to disclose it, tribunals can and do decide whether it is in the interests of justice to do so.
The law of privacy is complex and it is still developing. It is far better to stay within the common law duty of confidence, which has worked well in the other areas to which I have already referred. Incidentally, the Joint Committee on Human Rights raised no objection to the provisions. I hope the noble Baroness, Lady Miller, will agree that that amendment is unnecessary.
Amendment No. 202 requires that all information provided in response to the questionnaire would be treated as confidential and could be used only by the complainant for the purposes of taking a case to a tribunal.
As I have already explained, the questionnaire will not alter the common law duty of confidence. It is far better to stay within the well-established common law duty than to try to construct an alternative version.
The amendment would allow information to be used only in proceedings before an employment tribunal, or an employment appeals tribunal, but a case might proceed to one of the higher courts of the European Court of Justice. The complainant should not be prevented from relying on the information gained in those courts as well. That amendment therefore does not commend itself to the Government.
4.30 p.m.
Baroness Miller of Hendon: I wonder whether the Minister can help me a little further. He referred to the other questionnaires on sex, race and so forth. Could
he tell me whether names and addresses are included in those questionnaires? That is the point that I was concerned about.Secondly, the Minister said that the questionnaire was confidential and the information could not be released unless the person concerned gave permission. However, I have read Clause 42 but cannot see where it says that it is confidential. That was the point of my putting the requirement into Amendment No. 202. I would be very grateful if the Minister could elaborate on those two points.
Lord McIntosh of Haringey: It does not say that it is confidential because it does not need to: the common law of confidence between employer and employee applies and is not affected by this Bill.
As regards the other questionnaires on sex and race and disability discrimination questionnaires, they are all different because they address different issues. However, they address fundamentally the same issue that, in order for a case to work, there have to be comparators, and those comparators should be as plain as possible within the limits of the common law duty of confidence. I do not think there are any cases where there would be a need for names and addresses, but there would be cases where somebody could be identified simply by being the only comparator available. Exactly the same issue arises in an equal pay questionnaire as arises in a discrimination or race questionnaire. I cannot give an over-riding answer which applies to all of them, because they are all slightly different.
Baroness Miller of Hendon: I thank the Minister for the extra comments he has made. I know he accepts that I speak with feeling about equal rights for men and women. I accept what he says and will take up his offer of borrowing his book—it sounds to me as though it would make very nice holiday reading.
However, I have to say that I have some concerns about this. I shall read extremely carefully what the Minister has said—I am sure that he means it all very well, but it is just that from where I sit, it appears that problems could arise for other employees. I will read his reply very carefully indeed and then make a decision for another stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 202 not moved.]
Clause 42 agreed to.
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