Tag Archive: gender pay

Gender Pay Reporting Regulations: Are you ready?

In 10 weeks’ time, the deadline for gender pay gap reporting for every employer with  250 or more employees will be here.  The Government estimates that around 9,000 employers will be required to report and, to date, less than 700 have done so – in the region of 7.5%.

So if you haven’t completed and published your report, where do you sit on the readiness curve?

If you haven’t completed and published your report, are you ready and waiting; do you still have lots to do; or have you actually yet to make a start?  Wherever you sit on the readiness curve, the Employment team at DLA Piper can help you to get your report across the line.

We are providing all levels of support to our clients including: advising them on how to go about producing the numbers for their report; checking their methodology; helping them to create and/or reviewing their narratives; explaining to the board what the regulations require; and advising on the manner of publication.  We are providing ad hoc advice in response to specific queries from some clients and are also part of other clients’ project teams set up to produce the report.

If you need any support in complying with your obligations in relation to gender pay, please get in touch with Clare Gregory, Kate Hodgkiss or your usual DLA Piper contact.

Permanent link to this article: https://www.dlapiperbeaware.co.uk/gender-pay-reporting-regulations-are-you-ready/

Be Aware: EHRC consults on its approach to enforcement of gender pay reporting regulations

The Equality and Human Rights Commission (EHRC) has published a draft policy paper setting out the approach it intends to take in using its enforcement powers in respect of the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (GPGR). The EHRC is consulting on the draft policy and wants to hear from businesses, representative bodies and anyone with an interest in pay gaps on its planned approach to enforcement. The consultation closes on 2 February 2018.

A recap – What do the GPGR require?

All private and voluntary sector employers with 250 or more employees in England, Wales and Scotland must now publish information on their gender pay gap under the GPGR. All listed public sector employers with 250 or more employees in England must publish the same information under the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017.

Private and voluntary sector employers must report the required pay gap information by 4 April 2018. Public sector employers in England must publish the required information by 30 March 2018.

Key elements of the draft policy

The draft policy states that informal action and cooperation are the EHRC’s preferred option, but that it will take formal enforcement action where employers do not comply.  In 2018/19, the EHRC intends to focus its enforcement work on employers who do not publish the information required by the GPGR. If it has capacity to do so, it may also take action against employers for publication of inaccurate data, if the EHRC considers that it is necessary, proportionate and feasible to do so. This is notable as there have recently been reports in the Financial Times of organisations reporting gender pay gap information which is statistically improbable and consequently almost certainly inaccurate.

In respect of the private sector, following the reporting dates, the EHRC will assess the scale of non-compliance and decide whether it is necessary to take a staged approach to enforcement. If a staged approach is necessary, the EHRC will divide non-compliant employers by industry and contact a tranche of randomly selected non-compliant employers within each industry, based on the number of non-compliant employers overall and the scale of non-compliance in each industry.

Where an employer does not comply with the GPGR by the relevant reporting date, the EHRC will write to them after that reporting date:

  • Drawing their attention to their obligations under the GPGR
  • Requiring them to acknowledge the letter within 14 days
  • Requiring them to confirm within their acknowledgment letter that:
    • they will comply with the GPGR retrospectively for the past reporting year within 42 days; and
    • they will comply with the GPGR on or before the relevant reporting date in the current reporting year.

Where the EHRC receives the necessary assurances it will monitor for compliance within the agreed timescales for both reporting years. Where the employer complies with those timescales, no further enforcement action will be taken in respect of those reporting years. If, however, a private or voluntary sector employer does not comply at the informal resolution stage, the EHRC will carry out an investigation into whether they have committed the suspected unlawful act (ie breach of the GPGR). As part of the investigation process an employer may be required to provide information and documents in their possession or to provide oral evidence.

During the course of an investigation the employer will be offered the opportunity to enter into a written agreement requiring compliance. If an agreement is entered into but not complied with the EHRC can apply for a county court order. If the employer does not accept the offer of an agreement and the conclusion is that the employer has breached the GPGR, the EHRC will issue an unlawful act notice requiring the employer to prepare a draft action plan within a specified time, setting out how they will remedy their continuing breach of the GPGR and prevent future breaches.

Ultimately non-compliance can result in unlimited fines but there are a number of procedural hoops to jump through first and the employer will always have the option to comply retrospectively.

Employers can respond to the draft policy consultation online here:  https://www.smartsurvey.co.uk/s/GPGRconsultation/.

For more information on how to calculate your organisation’s gender pay gap, visit Be Aware or contact your usual DLA Piper contact.

Permanent link to this article: https://www.dlapiperbeaware.co.uk/be-aware-ehrc-consults-on-its-approach-to-enforcement-of-gender-pay-reporting-regulations/

Equal Pay Day puts the spotlight on gender pay gaps

10 November 2017 is Equal Pay Day – the day when women effectively stop earning for the remainder of the year compared to men. This is based on the current (mean) gender pay gap which the ONS has revealed to be 14.1% for women working full-time.

The Fawcett Society, the organisation behind the concept of Equal Pay Day, is leading a campaign urging politicians and employers to make a ‘pay gap pledge’ to close the gender pay gap for good.  Following hot on the heels of recent legislation requiring employers to publish their gender pay gaps by April 2018, this brings the issue of gender pay into sharp focus and reinforces the importance employers need to attach to tackling their gender pay gaps.

In short, employers of 250 or more employees must publish prescribed information relating to their gender pay gaps on both their own websites and on the Government’s specially designated website by 4 April 2018. The Government estimates that this will apply to around 9,000 employers with approximately 15 million employees.

To date, just 219 employers have embraced the task and published their information. This is available to view via the Government’s gender pay gap viewing service. The contrast in data is stark, ranging from a mean hourly pay gap for one employer of -35.4 (meaning that the average hourly rate of pay for is higher for women than for men – for every £1 being paid to a woman, a man is receiving approximately 65p) up to a gap of +54.2 for another employer (demonstrating that the average rate of pay is higher for men than for women – for every £1 being earned by a man, a woman is receiving approximately 46p). Some statistics of particular interest are those of the Commission for Equality and Human Rights (mean gap of -7.5); ACAS (mean gap of +7.1) and the Department for Education (mean gap of +5.3).

It is important to remember that whilst a gender pay gap may raise the profile of equal pay within an organisation and lead to greater scrutiny of pay by employees, a pay gap is not the same as unequal pay. There may be many reasons for a pay gap  including having a higher proportion of women to men in part-time positions, and similarly there being fewer women than men in senior roles in the organisation (and vice versa). Transparency and communication of pay structures may help assist employees to understand the reasons for any gap and, whilst there is no statutory obligation to report the reasons, many employers are taking the opportunity to publish a narrative alongside their figures. At the very least, a pay gap should  act as an impetus for organisations to query the reasons behind it and to start to work towards strategies for reducing it.

Mean bonus gaps reported so far also vary hugely from -184.6 to +467, perhaps significantly impacted by the way in which businesses are structured and suggesting that where one gender is dominant in senior positions where higher bonuses are likely to be paid, the gap will be skewed accordingly.

With less than 5 months now to go until the deadline when all affected employers must publish their gender pay gap information, it seems that there will be a flurry of last-minute activity. Employers who have yet to get to grips with their obligations should now make this a priority. The legislation is complex, numerous calculations must be made and the data must be officially signed off by a director (or equivalent).

For assistance on reporting your gender pay gap, or for a copy of our gender pay gap publications, please contact Kate Hodgkiss or Clare Gregory in our UK Employment law team, or your usual DLA Piper contact.

Permanent link to this article: https://www.dlapiperbeaware.co.uk/equal-pay-day-puts-the-spotlight-on-gender-pay-gaps/

The clock is now ticking for employers to publish their gender pay gaps

Today marks the beginning of the one year gender pay gap reporting countdown for every employer with  250 or more employees.

Within the next 12 months, each of these employers will have to wrestle with the Government’s new complex regulations, get to grips with the various calculations, and finally publish details of their gender pay gaps on both their own websites and a specially designated Government website.   For many, there will be nervousness in relation to how competitors are managing the process, how they will fare in comparison, and when to ‘push the button’ to make the results publically available.   Many employers will already have done a dry run of the calculations or otherwise have an informed idea of their existing pay gap.  4 April 2018 is the latest date on which the information can be formally published.

We have designed a quick 30 second survey to capture current information on median* gender pay gaps by sector.  We would be really grateful if you would take the time to complete the survey on a completely anonymous basis. We will publish any representative information in due course on our Be Aware website, with the aim of assisting employers to understand how they compare in their sector marketplace.

Access the survey

If you would like to speak to one of our experts on gender pay gap reporting, or would like a copy of our Snapshot publication on the new obligations, please email Clare Gregory or Kate Hodgkiss.

*regarded by the ONS as being most representative of the pay gap as it is less affected by numbers at the extreme ends of the spectrum


Permanent link to this article: https://www.dlapiperbeaware.co.uk/the-clock-is-now-ticking-for-employers-to-publish-their-gender-pay-gaps/

Gender pay gap reporting: what counts as ‘pay’?

Two weeks from today, 5 April 2017, marks the ‘snapshot’ date for which employers who are in scope need to collect the raw data on which to calculate their mean and median gender pay and bonus gaps. Employers will be required to publish information on their gender pay gap by 4 April 2018.

The requirement to assess pay data is the gross hourly rate of pay in the pay period which covers 5 April. Pay is calculated using gross figures, before any deductions for PAYE, National Insurance contributions, pension contributions, student loan repayments and voluntary deductions and takes into account both ordinary pay and bonus pay.

Ordinary pay means basic pay,  allowances, pay for piecework, pay for leave; and shift premium pay. It does not include overtime pay, redundancy pay, pay in lieu of leave, or non-monetary remuneration. 

Bonus pay means as any remuneration that is in the form of money, vouchers, securities, securities options or interests in securities and that relates to profit sharing, productivity, performance, incentive or commission.

These definitions give rise to some grey areas. The draft guidance published by Acas and the Government Equalities Office makes clear that the value of benefits provided under a salary-sacrifice arrangement do not count as ordinary pay; the employer should use the employee’s gross pay after any reduction for a salary-sacrifice scheme.  

The position in relation to pension contributions is still not entirely clear. The guidance says “The amount of an employee’s ordinary pay and bonus pay must be calculated before deductions are made at ‘source’. Employee pension contributions are a deduction, so whether or not an employee makes pension contributions will not affect the gender pay gap calculations” but it is arguable that employer contributions are not a deduction. A salary supplement that an employee receives because they have opted out of a pension scheme would be included in pay.

Benefits in kind are excluded from the definition of ordinary pay. This means that an employer should disregard the value of, for example, a company car provided to an employee. However, car allowances should be included in the calculation, as allowances are included in the definition of ordinary pay. Where an employer provides an interest-free loan to employees, such as a season ticket loan, the value of the loan should not be included as pay.

Should retrospective pay rises be included in the calculation? The regulations allow employers to ignore “any amount that would normally fall to be paid in a different pay period” but this does not cover pay which should have been paid in the relevant pay period but was not. 

Overtime is another grey area. Remuneration referable to overtime is excluded from the definitions of both ordinary pay and bonus pay. This suggests that employers should exclude not only actual overtime pay but also other elements of pay (such as allowances and shift premiums) earned in respect of overtime hours. If so, employers would need to distinguish between what is earned during normal working hours and what is earned during overtime hours. However, such a distinction could be difficult to draw in respect of some elements of pay. For example, how should an employer determine which part of a performance bonus or sales commission relates to work done during overtime hours?

These grey areas are bound to lead to inconsistencies in how employers in the same sector approach their data. Ultimately this risks making comparisons between employers of limited value. The most important consideration for employers may be to ensure that they take a consistent approach internally so they can track their own progress on the gender pay gap year-on-year.



Permanent link to this article: https://www.dlapiperbeaware.co.uk/gender-pay-gap-reporting-what-counts-as-pay/

Gender pay reporting: Who is in scope?

ACAS and the Government Equalities Office have published guidance on the gender pay reporting requirements due in force from April.  Employers will be required to publish information on their gender pay gap by 4 April 2018.

The guidance leaves a number of questions unanswered, including: Which workers are in scope?

We know that the report must include employees, zero hours employees and casual workers, plus other workers who provide personal services. But there are some grey areas:

  • What about contractors who supply their services via their own service company, or an intermediary? The guidance suggests that the contractor would count towards the headcount of the service company, not the end user but it is not clear that this is the right approach.
  • What about agency workers who are employed by an agency but provide personal service to the client.  Do both the agency and client have to report on those workers?
  • What if the employer does not have sufficient information to calculate hourly pay of its contractors?  There is an exception to the requirement to publish pay data for workers/contractors if the employer does not have the data and it is not reasonably practicable to obtain it. What does “reasonably practicable” mean?  The guidance suggests that employers should ‘consider’ whether it is reasonably practicable to obtain the information by asking for it and new contracts should seek, where possible, to ensure that contractors are required to provide the information needed for compliance. However, as the guidance is non-binding, employers may take a different view.

The most important consideration for many businesses may be to ensure that how workers are categorised for the purposes of gender pay reporting is consistent with and does not undermine the employer’s employment status strategy in other areas.

Permanent link to this article: https://www.dlapiperbeaware.co.uk/gender-pay-reporting-who-is-in-scope/

Gender pay reporting regulations published, to come into force 6 April 2017

The Government has today published the revised draft Equality Act 2010 (Gender Pay Gap Information) Regulations 2017, which are intended to come into force on 6 April 2017. Under the regulations, employers employing 250 or more employees will be required to publish information about the gender pay gap in their organisation.

The original draft regulations contained a number of problem areas (Se our Be Aware of 15 February 2016). Whilst some of those problems have been addressed in the new draft, some remain and there are some new problem areas to grapple with.


‘Employees’ are not defined in the draft regulations; however, the explanatory notes state that the definition of employment is the section 83 of the Equality Act 2010 definition which includes employment under a contract of employment, a contract of apprenticeship and a contract personally to do work. This would include many independent contractors. However, the impact of using the wide definition of employee is softened slightly by a new provision which says that the employer is not required to include data relating to an employee who is employed under a contract personally to do work if the employer does not have the data and it is not reasonably practicable to obtain it.

Partners, including partners in an LLP, are excluded from the definition of employee. It is not clear why this exclusion has been made.

The data snapshot

The requirement is to publish data captured at a snapshot date. This has changed from 30 April 2017 to 5 April 2017. The obligation to report is within a year of the snapshot date.


Pay is gross pay calculated before deductions at source. The definition of pay has been tweaked in the new regulations but has not changed substantially. Pay will include basic pay, paid leave, allowances, shift premium pay, and pay for piecework. Pay will not include overtime pay, expenses, benefits in kind, redundancy or other termination pay, payment in lieu of leave. Bonus pay is included but has a separate definition in the new regulations. Commission is treated as bonus pay.

The duty to publish annual information relating to pay

The basic obligations on employers who are caught by the regulations remain the same. They will need to publish:

  • The difference in the mean and median pay of male and female employees;
  • The difference in mean and median bonus pay of male and female employees;
  • The proportions of male and female employees who were paid a bonus in the previous year; and
  • The numbers of male and female employees employed in quartile pay bands.

However, the detail of what must be published has changed.

In calculating the mean and median pay gap, employees who are not on full pay due to being on leave are excluded. If an employee is being paid at a reduced rate or nil as a result of being on leave during the pay period which includes 5 April they are not included. Leave includes maternity, paternity, adoption, parental and shared parental leave, sick leave, annual leave and special leave. This could mean that many employees who are on annual leave on 5 April should be excluded; even without the impact of the holiday pay litigation, many employers perfectly lawfully pay employees less during annual leave than they would receive if they were not on leave; arguably, this is pay at a reduced rate. This could have a significant impact on some employers, particularly as the snapshot date will often fall in the Easter holiday period.

Employees on leave are also excluded from the quartiles information but are not excluded from the calculation of mean and median bonus or proportions of employees paid a bonus.


The definition of bonus has been clarified and now makes it clear that pay in the form of securities, securities options and interests in securities is treated as paid at the time when and in the amounts in respect of which it gives rise to taxable earnings.

Calculation of the hourly rate of pay

The new regulations set out in detail the steps involved in calculation of the hourly rate of pay of relevant employees, presumably intended to mitigate the impact of unusual work patterns and achieve a more accurate comparison. The steps are as follows:

  • Identify the pay period – generally speaking, the period in respect of which the employer pays basic pay (weekly, fortnightly, monthly etc);
  • Identify all amounts of pay and bonus pay paid during the pay period which includes 5 April;
  • Exclude any ordinary pay which would normally be paid in another pay period;
  • If bonus (which includes commission) is calculated over a different period, pro-rata it in respect of the pay period;
  • Add together the ordinary and bonus pay as adjusted;
  • Multiply by (7 divided by the number of days in the pay period); and
  • Divide by the number of working hours in a week.

There is  a new provision which determines how to calculate working hours; either normal working hours or an average over a 12 week period if the employee has no normal working hours.


The new regulations set out in detail how the quartile pay bands should be calculated. This was unclear under the old regulations. Once the hourly rate of pay for all full-pay relevant employees (ie not those receiving reduced or nil rate due to being on leave) has been calculated, those employees should be ranked from lowest hourly rate to highest hourly rate. The list should then be divided into 4 sections each containing (so far as possible) an equal number of employees. The employer must publish the proportion of male and female employees in each quartile as a percentage.

In recognition of the fact that this method is potentially open to manipulation, as employers can decide which quartile employees on the same hourly rate of pay are assigned to,  the regulations require employers to assign relative proportions of male and female employees to each quartile – so if there are 20 employees who could legitimately be put in either of 2 adjacent quartiles and 10 are male and 10 female, 5 of each should be assigned to each of the 2 quartiles.

Form and manner of publication

Here there has been no change. The information must be published on the employer’s website in a manner which is accessible to its employees and the public, for a period of at least 3 years, and it must be accompanied by a statement signed by a director (or similar for non-companies) which confirms that the information is accurate.


Whilst the new regulations, like the old regulations, do not expressly contain any sanctions for failure to comply, the explanatory notes state that a failure to comply with an obligation imposed by the regulations will constitute an ‘unlawful act’ within the meaning of section 34 Equality Act 2006 which empowers the Equality and Human Rights Commission to take enforcement action. Such enforcement action is, in practice, unlikely due to the EHRC’s limited resources but does mean that the regulations are theoretically not completely toothless.

Permanent link to this article: https://www.dlapiperbeaware.co.uk/gender-pay-reporting-regulations-published-to-come-into-force-6-april-2017/