The BBC reported on 6th January 2017 that 527 companies have so far complied with the obligations to report on their gender pay gap. Those obligations are set out in the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 in respect of private sector employers, and the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 in respect of most relevant public sector bodies. Both sets of regulations apply respectively to private sector and public sector organisations who had 250 or more employees on the snapshot dates (5 April and 31st March respectively).

While the immediate impact of the Regulations was ostensibly intended to bring any gender pay gap to an employer’s attention so that it may take proactive steps to narrow any gap found, a cynic might conclude that the macro impact also played in the Government’s mind: McKinsey estimated in a 2016 paper “The Power of Parity,” could be to create an extra £150 billion on top of GDP forecasts by 2025.

But just as the attempts to bring pay equality to the NHS under “Agenda for Change” brought a tsunami of equal pay claims there, the first hints of prospective litigation in respect of the gender pay gap reporting regulations appeared, over the weekend, to have already reared their head.

It was reported on the 7th January 2018 that the BBC’s China Editor, Carrie Grace, had resigned from her post citing pay inequality with male colleagues. While this story appeared almost simultaneously with the gender pay gap reporting of the 527 companies, the Carrie Grace story is not actually linked to that.   In an unrelated move in July 2017, the BBC had published the salaries of its highest-paid stars, with all those earning over £150,000 specifically named. This was always likely to end badly.

Happily with a deadline looming for employers caught by the two sets of gender pay gap regulations, naming individuals personally is not a requirement. Under both sets of regulations the relevant employers must calculate and publish (on both their own website and the designated government website www.gov.uk/genderpaygap) the following information:

• Their mean gender pay gap
• Their median gender pay gap
• Their mean bonus gender gap
• Their median bonus gender pay gap
• Their proportion of males receiving a bonus payment
• Their proportion of females receiving a bonus payment
• Their proportion of males and females in each quartile pay band
• In respect of employers subject to the Gender Pay Information Regulations, a written statement confirming the accuracy of the calculations by an appropriate senior person.

In the circumstances, most employers are unlikely to be required to publish the type of information published by the BBC, i.e., that which provides sufficient granularity of gender pay gap information to found an equal pay claim.

That may not be the end of the matter however.  Those employers who choose to voluntarily provide further granularity, whose figures on the face of it disclose a significant gender pay gap, or indeed any employer if there is sufficient media interest raised in the issue, could face not only specific requests for information from women seeking to establish whether there is a pay difference and, if so, the reasons for such difference, but equal pay claims in an employment tribunal.  In the above circumstances, employers to whom the gender pay gap reporting obligations apply should be preparing not only their reporting information now, but their HR and PR teams to deal with the issue should it arise.

Employers who are unsure of whether they are caught by the gender pay gap regulations, how to comply with their obligations, or who amounts to an employee for these purposes, should take prompt advice from a competent employment lawyer as a matter of urgency.

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