With the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 ("the Regulations") due to come into force on 6 April, ACAS and the Government Equalities Office have produced timely guidance on gender pay gap reporting. The guidance, snappily entitled Managing gender pay reporting in the private and voluntary sectors, provides step by step guidance on complying with the Regulations. It also explains what the gender pay gap is, how organisations may have contributed to it and who the Regulations apply to. This includes whether overseas workers (possibly), casual workers and contractors (possibly), partners (possibly not) and part time or job share employees (definitely yes) should be included in the headcount for the 250 employee threshold as well as sensitive issues such as gender identity of some employees.
Although the guidance is branded as being draft, it is extremely useful guidance for businesses, particularly so for those who may have delayed preparations for meeting the reporting obligations. However, there is one significant inconsistency between the Regulations and the guidance. The Regulations do not contain any enforcement provisions or sanctions for non compliance. However, the guidance says that the Equality and Human Rights Commission (EHRC) has power to enforce any failure to comply with the Regulations. Under the Equality Act 2006 the EHRC can carry out investigations into unlawful acts and issue unlawful act notices. However, as failing to publish the information is not contrary to the Equality Act 2010, arguably a failure to do so cannot amount to "unlawful action". It remains to be seen what action EHRC will take, but they have stated that they accept the Government's view that failing to publish the information will be an "unlawful act".