Katy Wedderburn

On 8th March 2019, the Scottish government published its first gender pay gap action plan which aims to further reduce the gender pay gap in Scotland by 2021. It is reported that in 2018, the gender pay gap for full-time employees in Scotland was at 5.7 per cent.

Eradicating the gender pay gap is high on the government’s agenda, so it is important that employers get ahead of the curve, implement their own action plan (if required) and ensure they meet their reporting obligations.

What is the gender pay gap?

The gender pay gap (GPG) shows the difference in the average pay between all men and women in a workforce.

This is different to equal pay which deals with the pay differences between men and women who carry out the same jobs, similar jobs or work of equal value.

What is the law?

The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (GRG Regulations).

Who do the GRG Regulations apply to?

Employers
A private or voluntary sector employer must comply with the GRG Regulations if they have a ‘headcount’ of 250 or more employees on the 5th of April of the relevant year.

There are separate reporting duties for public bodies in Scotland. Schedule 2 of the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 provides a list of specified public authorities to whom the duty to report applies. Listed bodies include all Scottish government departments, local authorities, universities, colleges, health boards, emergency services and non-departmental public bodies that have been established in Scotland. They only apply if the authority has 250 or more employees on 31 March of a given year. Any public sector employer not listed still needs to follow the private and voluntary sector regulations if they apply to it.

Employees
The GRG regulations apply to those “relevant employees”, who are employed on the relevant snapshot date (5 April). The only exceptions are partners and LLP members. Casual workers and some contractors will be considered as employees and should therefore be included in the calculations.

What is the deadline for submitting the report?
The deadline for submitting your 2019 GPG report will differ depending on what type of organisation you are:
For relevant public sector organisations, the deadline is 30 March 2020.

For a private company or a charity, the deadline is 4 April 2020.

How do you calculate the gender pay gap?

The GPG Regulations require employers to calculate the gender pay gap by using data from a specific pay period every April. The relevant pay period is the pay period within which the snapshot date (5 April) falls.
The Regulations provide step-by-step guidance on how to correctly calculate the gender pay gap in relation to earnings and bonus. ACAS also provides helpful guidance on this too.

What are the publication requirements?

Employers must ensure that their GPG information is accessible to all employees and the wider public. The information must be published on their own website (together with any accompanying narrative) and be retained online for three years. Employers must also upload the information to the government website.

In addition, employers must also publish an accompanying written statement which confirms that the information is accurate. The written statement must be signed by a senior individual, for example, a director or a partner. This is not required from specified public authorities.

Employers must ensure that any information published does not contain any sensitive employee data and is fully compliant with GDPR regulations. Therefore, only the gender pay calculation results and the written statement of accuracy should be published online.

What are the consequences for non-compliance?

The GPG regulations Explanatory Memorandum states that under Section 20 of the Equality Act 2006, the ECHR has the power to take enforcement action against those employers who do not comply with the GRG regulations as it will constitute an “unlawful act”. The ECHR therefore can conduct an investigation into a non-compliant employer and issue unlawful act notices.

All information is publically available on the government’s website. If an employer publishes inaccurate data or does not submit any form of report, this information will be accessible to all.

Many employers have published an action plan as to how they will address the gender pay gap.

Gender pay gap reporting is important for all those it applies to – non-compliance can do more reputational damage than publishing a poor result. If you would like help with your calculations; accompanying statement; developing an action plan or the reporting process generally, please contact a member of our specialist employment team for help and guidance.

Katy Wedderburn is a partner and Kirsty Fryer is a trainee at MacRoberts