On the eve of the implementation of the Equality Act tomorrow, I am still coming across the odd article that implies that private sector employers will have to start reporting publicly on the gender pay gaps at their organisation from 1 October 2010, or will probably have to do start doing so pretty soon.
This isn’t the case. There is a clause in the Equality Act that permits the introduction of regulations requiring private sector employers with at least 250 employees to publish information about the pay differentials between their male and female employees, no earlier than 2013 (see the Government Equalities Office website). But that part of the Act has not been implemented for now and the government says it is ”considering how to approach this clause in the best way for business and others involved”.
Even when Harriet Harman was spearheading the cause of gender pay reporting with significantly more enthusiasm than the current government (if you are an XpertHR subscriber, see my feature on this), the clause was only meant to be a back up plan should private sector firms fail to start reporting pay gaps of their own volition.
Guidelines for private sector firms to report gender pay gaps on a voluntary basis can be found here on the Equality and Human Rights Commission website. The EHRC has, I think rather cheekily, put “This is current law” in a big button on that page, but it is up to firms whether they wish to follow the guidelines or not.
There may still be an obligation on public sector employers to report on gender pay gaps from April 2010, however.
The previous government intended to make it mandatory for public sector organisations with 150 or more employers to report at least one headline pay gap figure (the difference between median women’s pay and men’s pay at their organisation) from April 2010, as part of the new single Equality Duty to be ushered in as part of the Equality Act.
The Government is consulting on this Duty at the moment (external website). While the consultation document emphasises the government’s desire to liberate public bodies from “time-wasting bureacracy”, this doesn’t look like it means scrapping data reporting requirements. Instead, the government sees “bringing data into the daylight” as a way of holding public bodies to account rather than “top-down targets”.
If you have views on how prescriptive or not government should be in setting out what workforce data should be reported, you should respond to the consultation before 10 November 2010 (PDF format, 749k).
Changes to the equal pay framework
More generally, as the Law Society says in the practice note on its website: “The existing framework on equal pay has largely been retained under the Equality Act.”
But there are some important changes coming into force tomorrow, most notably those provisions offering protection for people to discuss their pay with one another to find out whether pay discrimination may be going on, and allowing claims for direct gender pay discrimination where there is no actual comparator. The EHRC’s guidance on the Equality Act and pay and benefits can be found here.
Full guidance on these provisions and more, explaining what the Act means for you, is available on XpertHR. For example, take a look at our model equal pay policy and the guidance set out in the XpertHR employment law manual (subscription required).
It is worth keeping an eye out during the Conservative Party conference next week for any indications of government policy on equal pay reviews. Before the election, the Conservatives argued that all employers who lose an employment tribunal case on equal pay should have to undertake an equal pay review (external website), but whether that is now really likely to be a priority remains to be seen.