Mandatory Pay Gap Reporting Consultation Response
Provided by Thompsons Solicitors
What, if any, modifications should be made to these draft regulations? To inform our consideration of any proposed modification(s), please explain your response and provide supporting evidence where appropriate.
About Thompsons Solicitors
With over 100 employment lawyers across the country who deal with the full range of employment law including unfair dismissal, discrimination on pay and protected characteristics and collective redundancy issues, Thompsons Solicitors closely scrutinises all government legislation relating to employment law.
Thompsons are the appointed solicitors for many trade unions and, on employment and industrial relations issues, we act only for trade unions and their members. In addition to working on individual cases we also work with unions to secure improvements to the law.
It is in this context that we are pleased to respond to this consultation.
As currently drafted, Regulation 7 does not achieve any of its stated objectives.
It will not achieve publication of the numbers of male and female relevant employees on the relevant date in the quartile pay bands. It will therefore fail in its objective of transparency and comparability and as a result will fail to achieve the stated objective of peer pressure for change.
Given that there is no method of enforcement and therefore no scope for judicial review or decision on compliance with the regulations, the regulations themselves should be as clear and unequivocal as possible. To achieve that, we propose that Regulation 7 should read as follows:
The relevant employer must identify the gross hourly rate of pay for each relevant employee listed in order of increasing value. Pay bands A, B, C and D must be determined and expressed in quartiles as follows:
(a) pay band A is from the lowest gross hourly rate of pay to the first quartile;
(b) pay band B is from the first quartile to the second quartile;
(c) pay band C is from the second quartile to the third quartile;
(d) pay band D is from the third quartile to the highest gross hourly rate of pay.
This should be amended to provide that published information should be kept for a period of at least 6 years. This is necessary so as to be consistent with the individual’s right to arears of pay based upon equality of terms, and to provide a meaningful period over which any progress (or lack of progress) to reduce any gender pay gap including in terms of progression should be transparent.
No additional civil penalties
The government has chosen not to create any additional civil penalties. In the circumstances so as to make sure that any failure to comply with the regulations is not seen as putting defaulting employers at an advantage, we suggest that there should be an additional regulation providing that Employment Tribunals and Courts can take the published information (or lack of published information) into account as evidence, and draw such inferences as it sees fit in any claim for breach of an equality clause under s127 Equality Act 2010.
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