The majority of employers that are required to report their gender pay gap data by 5 April 2018 have yet to upload their figures to the government website. One explanation could be that the process of calculating gender pay gap data is complicated – but HR professionals will be required to get to grips with their company’s data, as well as communicating the final numbers once calculated. In my experience, there are five tricky areas in particular that you will need to get to grips with:
‘Employees’ and ‘relevant employees’
Companies with 250 or more employees must report on their gender pay gap. For gender pay gap purposes, "employee" is a broader definition than usual. It means anyone employed under a contract of service, a contract of apprenticeship or a contract personally to do work. This includes employees, casual workers, partners, salaried partners and LLP members (where they would usually be treated as employees, for example, for payroll purposes).
Once you have worked out if your company meets the 250 threshold, a narrower definition of "relevant employee" is used to decide whose pay must be included when calculating the gender pay gap. A "relevant employee" is an employee employed by the company on the snapshot date (5 April), with the exception of partners (including LLP members).
Contractors who are directly engaged by the employer (rather than through a personal service company) will count for both headcount and reporting purposes where they are personally obliged to do work for, and under the direction of, another person.
Whereas records for remuneration and working time for conventional employees are generally stored in the employer's payroll or HR systems, this will often not be the case for contractors.
There is an exclusion from reporting on contractors where the employer does not have the relevant data and it is not reasonably practicable to obtain it. However, Acas guidance suggests that companies should try to proactively obtain the necessary information from their contractor population to enable them to comply with their reporting obligations.
The general rule is that overseas employees will be included if they could bring a claim to an employment tribunal in the UK under the Equality Act 2010. This will depend on whether the employment relationship suggests a stronger connection to British employment law than anywhere else. Applying this test has the potential to be particularly onerous for employers with a large overseas workforce.
If currency needs to be converted in order to carry out relevant gender pay calculations, then the employer should use the exchange rate that applied at the date of payment, adding further complication to reporting on overseas employees.
Employees on reduced pay
Employees who are being paid at a reduced rate or zero as a result of being on leave (including sick leave and maternity leave) on 5 April will count towards the 250 threshold but should be excluded from the calculations for the gender pay gap and the quartile data. However, they must be taken into account in the calculation of the gender bonus gap.
How to present your gender pay gap
HR professionals will need to work with other departments within their organisation to think carefully about where and how to communicate their gender pay gap, both internally and externally. It is important to consider the wider implications, including how the company proposes to close its gap (if required); the commitments it will make to its employees; how it will deal with any reputational issues; and the potential impact on recruitment and retention.
A gender pay gap is not the same as an equal pay issue – the latter is characterised by men and women being paid unequally for equal work. However, given that most employers are likely to have a gender pay gap, simply publishing the figures without any explanation could generate some disquiet and prompt claims of unequal pay. A more targeted approach to communication will go some way to avoid this.
While there is no obligation to provide a narrative, it is particularly important where a company has reported a gap as it presents an opportunity to explain this, provide context and demonstrate how the company is proposing to address any issues. A carefully drafted and tailored narrative could help to curb both internal and external criticism.
Siobhan Fitzgerald is a partner at law firm TLT