What are the potential consequences for employers of non-compliance with the gender pay gap reporting duty?
The draft Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 require employers with 250 or more employees in the private and voluntary sectors to publish figures showing their gender pay gap. The draft Regulations themselves do not include an enforcement mechanism or any sanctions for non-compliance with the duty, but the explanatory note to the Regulations states that failure to comply with the duty will constitute an "unlawful act" within the meaning of s.34 of the Equality Act 2006, which empowers the Equality and Human Rights Commission (EHRC) to take enforcement action.
In addition to the risk of enforcement action by the EHRC, employers should consider the potential damage to their reputation of non-compliance with the gender pay gap reporting duty. An employer that publishes information on its gender pay gap in line with the duty, along with an explanation putting the figures in context and providing details of steps that it is taking to address the gap, is likely to be more attractive to potential future employees than an employer that has failed to comply with the duty.
Employers are required to publish their gender pay gap information on a Government website. The Government has said that this will allow it to monitor levels of compliance and establish a database of compliant employers. It had previously said that it wanted to publish tables showing employers' reported pay gaps by sector and that it may also publicise the identity of employers known not to have complied with the duty.
The gender pay gap reporting duty for public-sector employers in England is to be brought in by extending the existing specific public sector equality duties, under the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017. The EHRC has responsibility for enforcing the public sector equality duties. It will be able to issue a compliance notice against a public body that it believes has failed to comply with the gender pay gap reporting duty and can apply to the courts for an order requiring compliance.