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All women want to receive equal pay for equal work. We have had legislation for more than 30 years to enforce this, so why does the Equal Opportunities Commission still find that women working full-time earn, on average, 18% less per hour than their male colleagues? For female part-time workers, the disparity is even worse – they earn 40% less per hour.

Most of the media's focus this year has been on the City's "rough and tumble" boy's club culture and the bonus pay dispute between Louise Barton and banking group Investec Henderson Crosthwaite.

However, there have been some other, less well publicised developments that are particularly relevant to housing.

The most important of these are the recent introduction of the equal pay questionnaire and the Equal Opportunities Commission's newly revised code of practice on equal pay.

Popping the question
From 6 April 2003, a new questionnaire procedure for use in equal pay claims became law. It allows a woman to question her employer before deciding whether to proceed with the claim.

The claimant may request information relating to the terms and conditions of other employees as a means of investigating whether she is receiving equal pay or not. This is a very useful tool for employees but very difficult for employers to deal with, not least because of the Data Protection Act and confidentiality concerns.

If the employer fails to answer the questionnaire within eight weeks or replies in an evasive or ambiguous manner, the employment tribunal that follows is likely to judge that discrimination has occurred.

The Louise Barton case demonstrates tribunals' attitude to perceived shiftiness.

Barton claimed that she had been discriminated against on gender grounds in relation to her remuneration package. Investec argued that Barton's colleague, Matthew Horsman, was paid more than her, not because she was female but because he was being headhunted and they did not wish to lose his services. The bank decided to avoid answering any questions on salary and benefits paid to men in the company, before and during the proceedings. The tribunal found Investec's silence to be eloquent.

Now we have the questionnaire, we can expect tribunals to be even more robust in their criticism if an employer acts evasively

In the words of the Employment Appeals Tribunal: "No tribunal should be seen to condone a culture involving secrecy and/or a lack of transparency … as a reason for avoiding equal pay obligations."

Barton ultimately settled her claim with Investec.

At the time the case arose, there was no legal obligation on employers to answer questions about the pay and conditions of others during equal pay disputes. Now we have the questionnaire, we can expect tribunals to be even more robust in their criticism if an employer acts evasively.

Coded response
The revised Equal Opportunities Commission code of practice has been modified to take account of recent legal developments and will come into force on 1 December.

It explains employers' obligations on equal pay and provides practical guidance in respect of pregnant women and women on maternity leave, grievance procedures, the equal pay questionnaire and equal pay reviews.

Although the code is not binding, it is admissible in evidence in any proceedings under the 1975 Sex Discrimination Act or the 1970 Equal Pay Act. This means that if the code is ignored, it may count against an employer in any proceedings.

To minimise the risks of a successful equal pay claim, registered social landlords should keep the following in mind:

• where annual appraisals usually determine pay awards, line managers need to be properly trained on how to avoid gender bias
  
• criteria for awarding performance should be clearly defined and equal across departments
  
• when responding to an equal pay questionnaire, an employer should not put forward blanket excuses of confidentiality, but examine each case individually and seek advice before deciding on why information cannot be disclosed
  
• set up a disclosure policy to tell staff likely to receive questionnaire requests for information how they should respond
  
• ensure that staff check the legitimacy of such requests.

What won't impress the tribunal
A number of unions have put equal pay for equal work at the top of their wish lists. It is predicted that the number of such claims will increase dramatically in the next five years. Tribunals have shown that they will be unsympathetic to employers that try to avoid equal pay obligations, or simply don't comply with them.