Should agency workers and contractors be included in the calculation of an organisation's gender pay gap?

Whether or not agency workers and contractors should be included in the calculation of an organisation's gender pay gap will depend on whether or not they fall within the definition of employee used in the relevant Regulations.

The draft Equality Act 2010 (Gender Pay Gap Information) Regulations 2016 define an employee as someone who ordinarily works in Great Britain under a contract of employment governed by UK legislation. However, the draft Regulations have been the subject of consultation and it is likely that they will be amended before being brought into force. The Government has indicated (in its consultation on mandatory gender pay gap reporting for public-sector employers) that the definition of employee that will be used in the final version of the Regulations will be that under s.83 of the Equality Act 2010. Under this definition, an agency worker or contractor who does not have a contract with the employer (either a contract of employment or a contract personally to do work) would not be covered. Agency workers would be included in the calculation of the agency's gender pay gap if they have a relevant contract with the agency.