HR professionals, academics and organisations regularly debate the role and contribution of HR. What often isn’t discussed and analysed in enough detail is the importance of HR’s role in protecting its organisations in a complex legal terrain. This is often hidden from scrutiny; a clandestine set of practices that are not considered as valuable.
HR can make a valuable contribution to protecting their organisations by being ‘artful’ in their interpretation and implementation of employment law. Our recent research into this artfulness has focused on the gender pay reporting regulations, which came into force in April 2017, and the ways in which the employment solicitor-HR practitioner relationship has affected how the law has been interpreted and implemented.
The regulations require companies – particularly HR professionals who take ownership of compliance – to be proactive: private employers with 250 or more employees, and public sector employers, have to publish specific data. This data includes the difference between the mean and median hourly rate and bonus pay for male and female employees; the proportion of male and female employees who were paid bonus pay; and the proportion of male and female employees in four pay quartile bands. This data must be published on the government’s gender pay reporting website and the organisation’s own website by April 2018, and annually thereafter.
We interviewed employment law solicitors and HR professionals about how they were implementing and interpreting the gender pay regulations on three separate occasion: October/November 2016, after the publication of the draft regulations; January 2016, after the publication of Acas’s guidance; and in April/May 2017, after the ‘snapshot date’ – ie the date when the regulations required the relevant data to be captured.
We found that HR practitioners demonstrate skills that could be considered ‘artful’ in how they are applying the law. Many HR professionals explained that they had captured and analysed the required data for their organisation in advance – in effect, a dummy run. This enabled them, in some cases, to address specific pay issues before the official snapshot date.
HR practitioners also indicated that they were carefully judging when to publish the data and monitoring publication by other organisations, in effect to publish when a high volume of other, similar companies were also making their statistics public. This judgment ensures that their organisations will be positioned in such a way that attention to their data is minimised. If, however, on analysing other organisations’ data, they were confident about their gender pay gap, they could use it to promote the business and become an employer of choice.
The research also shows that HR professionals have appreciated and understood the importance of the narrative they can publish with their data. The narrative is meant to give organisations the opportunity to explain any gender pay gap and state what they are going to do about it. HR professionals are thinking carefully and creatively about how the narrative can be used to contextualise the pay gap, and how to articulate the steps their company is taking to reduce the gap.
It was also clear that HR professionals were resourceful in relation to how they obtained advice in relation to the regulations. They have identified that the regulations don’t actually have any enforcement mechanisms and, therefore, although they wanted to ensure their organisations complied, the lack of enforcement ‘teeth’ meant that most did not see the benefit of seeking paid-for legal advice. Instead, practitioners were mining ‘free’ law guidance, such as by attending solicitors’ seminars or webinars – but not instructing them formally. HR professionals were also obtaining guidance from other sources, such as from the CIPD and Acas.
The findings demonstrate the vital role played by HR in ensuring compliance, and provide insight into an aspect of HR practice that tends to pass under the radar. Should we do more to recognise this artfulness?
Lucy Rees is an employment law solicitor (non-practising) and senior lecturer in HRM at the University of the West of England. Dr Helen Mortimore is a senior lecturer in HRM at the University of the West of England