Private and voluntary sector employers with 250 or more employees were required to publish a gender pay gap report by 5 April. It has been reported that over 1,500 employers failed to report their gender pay gap figures before last week's deadline.

The Equality and Human Rights Commission has said that it will now contact those businesses to remind them of their obligations. Any continuing failure could result in formal enforcement action including unlimited fines.

What are the EHRC's enforcement powers?

Last month the EHRC published a policy setting out its approach to enforcing the gender pay gap regulations:

  • In 2018/19, the focus will be on employers who have not published any information rather than those who may have published data incorrectly.
  • The EHRC will initially seek an informal resolution by writing to the employer drawing their attention to the fact that they have not complied with their gender pay gap reporting obligations. They will be required to comply for the past reporting year within 28 days of the letter; and by the relevant reporting date in the current reporting year. Where the employer complies with those timescales, no further enforcement action will be taken.
  • If formal action is required, the EHRC will begin a 'section 20 investigation' to establish whether a breach of the reporting requirements has been committed. An employer can be required to provide oral or documentary evidence and, as an alternative to the investigation, will be offered the opportunity to enter into a written agreement to comply with their gender pay gap reporting obligations. A continuing failure to publish gender pay gap figures could result in the issue of an unlawful act notice requiring the employer to prepare an action plan and, if necessary, an application to court for an order, the breach of which can lead to an unlimited fine.

Specified public sector bodies in England with 250 or more employees on 31 March in any year are under similar gender pay gap reporting obligations. The EHRC's powers of enforcement in relation to public bodies include public sector duty assessments; public sector duty compliance notices; and court orders.

There are different gender pay gap reporting obligations for listed public sector bodies in Scotland with at least 20 employees. They are not covered by the EHRC's enforcement policy.

How we can help

If your organisation has missed the deadline for gender pay gap reporting, Brodies is well placed to help: please get in touch.

Users of BResourceFull Workbox, our award winning online HR resource, can access the section on Gender Pay Gap Reporting which explains the calculations in detail and gives practical advice.

It answers many FAQs including:

  • Who counts as our employees?
  • Groups of companies - what do we need to report?
  • How do we calculate mean and median hourly rates?
  • Do we include paid / unpaid overtime hours?
  • What counts as pay when calculating the 'hourly rate of pay'?
  • What is bonus pay? Do we pro-rate bonuses?
  • Do we need to break down the figures into full-time vs part-time?
  • Do we need to break down the figures by age, grade or job type?
  • What should we say in our narrative?
  • What should we tell our employees about our gender pay gap?

If you do not currently have access to Workbox and would like to find out more, have a look at the Workbox home page where you'll find a short information video, or speak to your usual Brodies' contact to discuss a free trial or subscription options.


Julie Keir

Practice Development Lawyer