Gender pay gap reporting

OVERVIEW OF GENDER PAY GAP REPORTING

  • The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 require large private and voluntary sector employers in England, Wales and Scotland with 250 or more employees to take a snapshot of pay and bonuses as at 5 April 2017 (31 March 2017 for public sector organisations).
  • Such organisations then have 12 months to publish this information on their own and a government website.
  • The gender pay gap is a term used to describe the difference between the average pay of men and women in an organisation. As such, it reflects not just whether men and women are receiving equal pay for equal work, but also whether women are employed within the senior, higher paid, and whether the organisation is able to attract and retain an equal number of male and female employees.
  • ACAS has produced useful guidance on the calculations required.

WHICH EMPLOYERS AND EMPLOYEES ARE COVERED BY GENDER PAY GAP REPORTING?

  • Gender pay gap reporting applies to private and voluntary employers with 250 or more employees on 5 April. Bear in mind that the regulations do not say these must be ‘relevant employees’ which is the defined group of employees used for some of the actual calculations you need to report.
  • If your company is part of a group and each subsidiary has 250 or more employees on the snapshot date of 5 April, then each entity must complete their own report.
  • Employees are not defined in the regulations, but the government’s (non-binding) guidance states that for the calculations that a ‘relevant employee’ should be interpreted in line with s. 83 of the Equality Act 2010. This group includes anyone employed under: a contract of service; an apprenticeship; or a contract personally to do work. This means you need to include employees, casual workers on an umbrella contract even if they have not been given assignments during the pay period, zero-hour workers, and some contractors.
    • Atypical workers will need to be decided on a case by case basis, such as: 
    • Employees of a UK company working abroad for the UK company or employees of an international company working in the UK. Assess whether they have a sufficiently close employment relationship with Great Britain to be included.
    • Non-executive directors. Although not employees normally they are often paid through payroll and have a contact personally to perform services. It is likely though that they can be excluded as they are independent from the business.
    • Zero-hours workers who have not been provided with any work during the pay period may still need to be counted as relevant employees, although their hourly rate will be zero. Employers can exclude employees on reduced on nil or reduced pay if its due to leave period, but not due to working patterns. Some commentators have suggested employers might treat these zero-hour workers as being on leave so they can be excluded and not skew their data, but you need to decide whether this approach is right for your business or whether it would be better to include them and an explanatory note in the report.
  • Contractors operating through their own personal service companies and agency workers employed by an agency will not be ‘relevant employees’ however.
  • Part time or job share employees are counted as one full-time employee each.

WHAT HAS TO REPORTED ON THE GENDER PAY GAP?

Employers must report on:

  1. their mean and median gender pay gap
  2. their gender bonus gap, and
  3. the number of men and women working across salary quartiles

What information do I need to begin?

  • Create a list of employees and their associated pay/bonus data as follows: 
    • List each individual and their gender. If necessary, ask them to confirm the recorded gender.
    • Identify which are ‘full pay relevant employees’ whose data will be used for all the calculations, and those who are ‘relevant employees’ whose data will be used only for the bonus calculations.
    • Identify what will be the relevant pay period and relevant bonus period.
    • Calculate bonuses for each individual:
      • record bonuses received in the relevant bonus period for all employees
      • record all bonuses received during the relevant pay period for full pay relevant employees only
  • Calculate pay for each individual: 
    • Record ordinary pay received in the relevant pay period for full pay relevant employees only.
    • ‘Pay’ includes basic pay, fully paid leave, area allowances, shift premium pay, bonus pay and other pay (including car allowances paid through payroll, on call and standby allowances, clothing, first aider or fire warden allowances). It does not include pay for a different pay period, overtime pay, expenses, the value of salary sacrifice schemes, benefits in kind, redundancy pay, arrears of pay and tax credits.
    • Bonus pay which means all payments received and earned in relation to profit sharing, productivity, performance and other bonus or incentive pay, piecework and commission, long-term incentive plans or schemes (whether dependent on company and/or personal performance), and the cash equivalent value of shares on the date of payment.
    • Pay is calculated before deduction of tax, NICs, pension scheme contributions, student loan repayments and voluntary deductions.

1. Mean and median gender pay gap

  • The mean gender pay gap is the difference between the average hourly earnings of your female employees (taken as a single group) and the average hourly earnings of your male employees (taken as a single group).
  • The median gender pay gap is the difference between the median hourly earnings of your female employees (taken as a single group) and the median hourly earnings of your male employees (taken as a single group).
  • The median is the middle pay figure where half earn more and half earn less. The government considers this is the best representation of the ‘typical’ difference as it’s unaffected by very high earners.
  • The calculations are made over a ‘relevant pay period’, i.e. the timeframe you normally pay employees in (for example, weekly or monthly) within which 5 April falls.
  • You need to report these figures as percentages.

2. Gender bonus gap

  • You need to report the difference in mean bonus pay paid to men and women during the period of 12 months to 5 April each year, and also the median bonus pay of men and women during that time. These need to both be expressed percentages.
  • You also need to identify the proportion of male and female employees who received bonus pay during the period of 12 months preceding the relevant date.

3. Pay quartiles

  • You need to divide your overall pay range into four equal ‘quartiles’ or pay bands and report the number of men and women in each of those four pay bands.
  • You also need to calculate the salary quartiles themselves based on your overall pay range. This is no more than a simple statement of the number of employees in each pay quartile by gender.

Can I exclude any of my employees from the calculations?

  • Individuals receiving less than full pay because they are on leave (e.g. family related leave, special leave, annual leave, sick leave) from the mean and median pay rates, and the pay quartiles. You still need to include them however when calculating the gender bonus gap as they are still ‘relevant employees’ for this calculation.
  • Employees who do not identify as either gender.
  • Consultants’ data if it is not reasonably practicable to obtain it.

WHERE AND WHEN MUST GENDER PAY GAP INFORMATION BE PUBLISHED?

  • Gender pay and bonus gap data must be published, on an annual basis, on your UK website in a way that is accessible to all employees and the public.
  • The data must be retained online for three years.
  • Evidence of compliance will have to be submitted to a government-sponsored website.
  • The Government Equalities Office has published an online gender pay gap viewing service.
  • Your report must include the calculation results and a written statement signed by an appropriate senior person confirming the information is accurate.
  • You can include commentary to provide further information. This might be useful to explain a wide gender pay gap which you are taking measures to address or if you believe the data is skewed for some reason.
  • You need to calculate the figures as at 5 April 2017, and then publish them on or before 4 April 2018, with annual reports thereafter.

WHAT ARE THE PENALTIES FOR BREACH OF THE GENDER PAY GAP REPORTING REQUIREMENTS

  • There are NO criminal or civil penalties for breaching the regulations although the government’s explanatory note says that the EHRC can take enforcement action for non-compliance. However, the EHRC itself has said that it would not be possible to enforce the reporting requirements.
  • The government expects employers within scope to comply, seemingly relying on the reputational damage which may arise if employers not observe the law.
  • We understand the government will run periodic checks to assess for non-compliance. It may also: 
    • produce tables by sector of employers’ pay gaps, and
    • highlight employers who publish particularly full and explanatory information
  • Should matters reach litigation (in the context of an equal pay claim), a tribunal could arguably draw adverse inferences from either no or false published information.

Potential issues

Our directors refuse to disclose this data because it is sensitive information

  • The board needs to balance its obligation to report the calculations against the fact there is currently no criminal or civil sanction for non-compliance and the potential detriment upon its reputation both internally and externally.
  • Don’t forget the board can potentially keep its investigations and analysis confidential and legally privileged if its solicitors are involved in the tasks.
  • The legal privilege protection cannot be obtained if only HR is involved though.

All our employees are provided via third party service providers. Do we have to count them when deciding if this obligation is triggered?

  • No, as long as they are not employed by the business.

We have only 200 employees normally but take on 100 at Christmas on a two-month fixed term. Do we have to report our gender pay gap?

  • No. The reporting obligation is triggered only if you have 250 or more employees on 5 April.

We have 250 employees on 5 April but several are on maternity or sick leave.

  • All those individuals on leave should be included when whether the reporting obligations are triggered. You can disregard them for the calculations, other than the bonus calculation, if they are not receiving full pay on 5 April however.

Do I count company car or car allowances as pay?

  • Car allowances are counted here as ordinary pay even if your payroll systems do not treat it as basic pay. Do not include company cars or other non-cash benefits in kind however.

My contractors refuse to give me pay data. Can I force them?

  • No, unless your contract with them says they must provide it. Explain the importance of the reporting obligations and consider amending the contract in future to include an explicit obligation to provide this data. You can also explain in the report’s narrative that it was not reasonably practicable to obtain data from some contractors.