Pay transparency, information access rights, and data protection law: exploring viable alternatives to disclosure orders in equal pay litigation

Equal pay litigation is often highly technical, with a drawn out and costly legal battle for claimants. This is somewhat because of the way equal pay law is constructed, as the requirement to have specific, named comparators can be an area of intense dispute. The complexity and length of cases looks set to increase as the parameters of equal pay for work of equal value are explored, and occupational segregation is challenged in the employment tribunals and courts. This article considers one of the largest obstacles to quick and efficient equal pay litigation: the imbalance of access to information between employer and employee. The difficulties of applications for disclosure orders are discussed, alongside pay transparency measures and the recent proposals for a right to direct access to a suspected comparator’s pay data. We consider whether the proposed right is a viable, swifter route to information parity and greater efficiency in equal pay litigation, in light of the experience of freedom of information requests regarding equal pay. Specifically, we note the tension that may arise between the ‘Right to Know’ a comparator’s pay, and the data protection obligations of the employer.