iIt would be wrong (in fact, outright churlish) to end the year without another poke at the new draft Gender Pay Gap Regulations, or rather the Government Equalities Office’s Response to the public consultation on them.
This is broadly a rehearsal of the different views expressed during that consultation process, mostly concerning the mechanics of how the gap should be calculated, but also containing some pointers towards the likely contents of the promised Guidance to the Regulations. By way of example, the Guidance should clarify that:
-
where a salary is artificially low because the employee has taken advantage of a salary sacrifice scheme (whether for child care, pension or any other purpose) that reduced salary should nonetheless be the one used;
-
the salary should otherwise be calculated pre-deductions, not just of tax or NI or pension contributions, but also other compulsory cash deductions for the employee such as Court-imposed child support or attachment of earnings orders;
-
if you start GPG reporting but then your employee numbers drop “slightly” below the 250 threshold on the next 5 April, then the Guidance will “encourage” (but cannot require) you to keep reporting on a voluntary basis;
-
The Response offers little help on what the employer might say in any “contextual information” it may choose to add as narrative to its GPG report. The Regulations themselves make no provision for this at all, so affected employers really do seem to have a blank sheet here. The suggestion is made in the Response that an employer could for example refer to any “disproportionate” impact on women’s earnings of their sacrificing salary to absorb costs relating to childcare, though no indication of what “disproportionate” means is given. It seems to me that if you have a minimum employee population of 250 then you would need really quite a lot of childcare-driven salary sacrifices to make any meaningful difference, leading to the only slightly cynical view that in your narrative you either list all the circumstances which might lead to any GPG, or none at all.
But fear not, weary employers of Britain, since help with all of this is at hand. The Response document thrillingly promises “a package of support to help employers calculate and address their GPG” including in particular, a “campaign of myth-busting UK-wide events and multi-media guidance”. Something in you just withers, doesn’t it?
So what are all these GPG “myths” that need busting across the UK exactly? I can think of only two – (i) that the degree of forensic granularity required by the Regulations is remotely justified by the limited educational value of the end result, and (ii) that having a GPG is necessarily indicative in any way of unlawful discrimination by the employer. Sadly, the first of these would be too embarrassing for the Government to admit so soon, and the second cannot be busted since the maintenance of that myth is integral to the Regulations having any effect at all. Without the public pressure generated by the misconception that a material gender pay gap is a clear sign of something having gone wrong, the Regulations have no teeth.
We can be sure that somewhere tucked away in the Guidance there will be a statement that a GPG doesn’t necessarily mean unlawful discrimination, but all the rest of it will almost certainly do its best to blur the line between law and good practice on one hand and cosmetics and legal equality on the other. After all, said John F. Kennedy, “the great enemy of the truth is very often not the lie….but the myth, persistent, persuasive and unrealistic. Belief in myths allows the comfort of opinion without the discomfort of thought”. Remarkably prescient to come up with this over half a century before the GPG Regs, I do think.
