First-tier Tribunal
(General Regulatory Chamber)
Information Rights Appeal Reference: EA/2020/0137
ON APPEAL FROM:
The Information Commissioner’s Decision Notice No: FS50890713
Dated: 03 March 2020
Date of Hearing: 08 December 2020
Before
JUDGE ROBERT GOOD
Between
ANGELA POWELL
Appellant
-and-
THE INFORMATION COMMISSIONER
Respondent
Subject Matter:
Freedom of Information Act 2000 (FOIA),
S 40(2) (Personal Information)
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DECISION OF THE FIRST-TIER TRIBUNAL
For the reasons set out below the Tribunal dismisses the appeal.
REASONS FOR DECISION
Factual background
1. The appellant, Ms Angela Powell has concerns about whether the Equality
and Human Rights Commission (EHRC) implemented equal pay. More
particularly, she believes that while she was working from the Birmingham
Office, she did not receive equal pay or equal pay for equal value.
2. Ms Powell, who had been employed by the EHRC for about 9 years was
made redundant, along with 5 colleagues in 2017. With the help of her
union, she challenged the decision in the Employment Tribunal and these
proceedings were settled on the advice of the union solicitors’.
3. Ms Powell believes that her claim to the Employment Tribunal was for
both Unfair dismissal and Equal Pay. However, she does not recall going
through any questionnaire procedure to identify a comparator for this
process. In any event, the claim for Equal Pay was either settled or is now
out of time. Ms Powell regrets agreeing to the settlement because what she
really wanted was re-instatement into a role within the EHRC and she
believes she was illegally underpaid for most, if not all, of her employment.
4. Ms Powell told the tribunal that she feels she was negligently advised to
settle her claim and she wishes to explore the possibility of an action
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against the union solicitor because of the advice she was given to settle.
She views the request for information under FOIA as the first step in
establishing such a claim. She believes that, if she was given the
information she seeks, it would confirm that she had been illegally
underpaid and such evidence could form the basis for a claim against her
solicitor.
5. Ms Powell requested, under FOIA, from the EHRC the following
information:
“Please find attached a table which requests details from the Birmingham
EHRC office, Victoria Square Houses, namely by, employees in post by
grade/name, job title and salary as at 9th February 2017.”
6. The EHRC responded refusing the request on the grounds that they viewed
the information as personal information and relied on the exemption in
S40(2) FOIA. However, it did provide some information. This was the
number of employees at each pay grade and the details of the range of each
pay grade.
7. Ms Powell then made an additional request for information:
“Can you apply EHRC’s pay gap method to the data and provide me with
the results”.
This further request was made at the same time as she applied for an
internal review of the first request. The request was also refused, although
not within the time limits required in the legislation, citing the same
personal information exemption.
8. Ms Powell made a complaint to the Information Commissioner (ICO),
whose initial view was that the requested information was personal data
and there was no lawful basis for providing it. This initial view did not
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change following investigation and the ICO issued the decision on 3 March
2020 in the terms she initially set out.
9. Ms Powell appealed to this tribunal on 28 May 2020 and provided
extensive grounds of appeal. These accept (para 63) that the information
requested is personal data. The appeal sets out the background and argues
that, despite the information being personal information, providing it
would be lawful because “processing is necessary for the purposes of the
legitimate interests pursued by the controller or by a third party,…(Article
6(f) General Data Protection Regulation 2016) (GDPR). This was the Article
which the ICO considered was most applicable to Ms Powell’s request.
10. The ICO did not consider it was necessary to see the withheld information.
Accordingly, there is no closed bundle. The ICO also stated that it would
rely on written submissions and would not be attending the hearing. The
EHRC was not joined as the Second Respondent.
The Hearing
11. Ms Powell requested a hearing so she could put forward her case in person.
Due to the restrictions as a result of Covid-19, there have been no face to
face hearings. This hearing took place via the CVP video, with the
assistance of a clerk from the GRC office. The hearing was recorded.
12. Ms Powell had indicated that she would benefit from the support of a
friend, Ms Timlin. However, due to restrictions on movement, her support
was not available. The tribunal took a 15 minute break at 12.30pm and a
break for lunch at 1.30pm. The hearing finished at 3.00pm.
13. The appeal papers run to 191 pages.
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Findings, Reasons and Conclusions
14. Ms Powell strongly believes that she has been illegally underpaid for
several years and wants the requested information because she believes the
information will evidence this. She has used the FOIA because this is a
possible route by which she could obtain this evidence. In her appeal she
comments that her intention was to use the data “for private and personal
means in relation to the unfair damage to her reputation.”
15. The tribunal accepts the findings of the ICO that the information requested
is personal information. Ms Powell in her appeal and further submissions
also accepts that this is the case. The first paragraph of her appeal
document reads “I would like to appeal on the grounds of legitimate and
necessary interests”. Further on in the same documents she specifically
accepts that the information sought is personal data.
16. However, during the hearing she expressed some reservations as to
whether her second request in May was a request for personal information.
That request is for the EHRC apply the gender pay gap method to the data.
She referred to her further submission of 20 August 2019 which attached
the EHRC report ‘Our gender pay gap report’ of 31 March 2019. 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.
17. Both the EHRC and the ICO took a different view. This is 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
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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. 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 ICO’s reasons for decision paras 31-35, which the tribunal accepts.
18. It follows that the tribunal find the exemption of S.40(2) applies to the
request. The Data Protection Act requires that personal data can only be
disclosed if it is lawful, fair and transparent to do so. In order for
disclosure to be lawful, it must come within Article 6 of the GDPR. The
tribunal agrees with the ICO that the applicable part of Article 6 is Article
6(1)(f). This states “processing is necessary for the purposes of the
legitimate interests pursued by the controller or by a third party except
where such interests are overridden by the interests or fundamental rights
and freedoms of the data subject which require protection of personal data,
in particular where the data subject is a child”.
19. Ms Powell accepts that this is the correct approach as is clear from her
grounds of appeal. In the hearing she did not suggest that the tribunal
should consider any other paragraph than Article 6(1)(f). Her argument is
that the information should be disclosed because the test of necessity is met.
20. Article 6(1)(f) requires two initial considerations. First, does the request
arise from a legitimate interest? Second, is disclosure necessary to meet this
legitimate interest?
21. The ICO accept that Ms Powell is pursuing a legitimate interest. Ms Powell
believes that there was a gender pay difference at the Birmingham office.
The data published by the EHRC for the whole organisation supports Ms
Powell’s view. As the ICO puts it, there is a “legitimate interest in ensuring
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that the body responsible for policing the law is itself an exemplar of best
practice”. The tribunal accepts that Ms Powell has a legitimate interest in
requesting the information.
22. Ms Powell told the tribunal that she just wanted the facts. She started work
with the EHCR in 2009 and was appointed at the bottom of the level 3 scale
and never progressed. She believes that those transferred from the legacy
commissions (EOC, CRE, DRC) were transferred at the top of this scale.
She told the tribunal that she regarded her request as necessary. She would
have preferred to have her request met privately and she tried to resolve
her grievance while in post. Ms Powell gave an example of the necessity
for this disclosure by the fact that the EHRC can investigate and criticise the
BBC but will not disclose its own shortcomings. In this respect, the EHRC
is a special case because of its unique role of policing equality in other
organisations.
23. Under current Gender Pay Gap Regulations, the EHRC is not obliged to
publish gender pay information in respect of its workforce because it has
under 250 employees. The organisation decided, because of its role, that it
should publish this data and does so. The issue for the tribunal is whether
it is necessary that the earnings details in respect of the 8 Birmingham office
employees should be disclosed to the world at large. Ms Powell wants it to
pursue a personal claim. The tribunal agrees with the ICO that the
disclosure of this personal information is not necessary to pursue 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. Because publication of the details from
Birmingham office is not necessary, the tribunal agree with the ICO that the
third step, a balancing exercise, does not arise. Such an exercise would
only arise if publication was found to be necessary under Article 6(1)(f).
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24. Ms Powell also submitted that the EHRC had failed in its duty to provide
advice and assistance because the only advice it had given was to refer her
to the website where the published data is set out. Ms Powell submitted
that the EHRC should have given her more assistance. The ICO took the
view that this was sufficient advice and assistance because The EHRC’s
view was that the information requested was personal information and that
disclosure would be unlawful so the advice and assistance that could be
given was limited. The usual types of assistance given is about limiting or
re-framing the request so that it can be legally complied with. In this case,
Ms Powell wants specific information about her colleagues pay in
comparison to her own. This request was refused but references was made
to the location of more general gender pay information for the organisation.
This advice and assistance was, in the circumstances, reasonable.
25. Having considered the appeal papers and the submissions from Ms
Powell, the tribunal upholds the ICO’s decision and dismisses the appeal.
Signed
R Good
Judge of the First-tier Tribunal
Date: 15 December 2020
Date Promulgated: 16 December 2020
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