Acas and the Government Equalities Office have published the final version of the non-statutory guidance on the new gender pay gap reporting requirements.
On 6 April regulations came into force introducing mandatory gender pay gap reporting for large private and voluntary sector employers (those with 250 or more employees). Separate regulations came into force on 31 March introducing similar gender pay gap reporting requirements for large public sector employers such as government departments, the armed forces, local authorities and NHS bodies.
In January Acas and the Government Equalities Office jointly published draft non-statutory guidance to the regulations, which relate to private and voluntary sectors.
Acas and the Government Equalities Office have now produced a final version of the guidance which now covers both private and voluntary sectors and public sector employers.
Changes to the gender pay gap reporting requirements
The final version contains the following changes:
Partners and LLP members
Partners, where they would usually also be considered employees, should be used to establish the employee headcount, but not be used as part of the calculations. This means that firms and LLPs will not have to include the earnings of their partners or members (including salaried partners and members) in their gender pay gap or gender bonus gap calculations.
Groups of employers
Each legal entity within a group must report separately on its gender pay gap and gender bonus gap. However, a corporate group may voluntarily publish details of the overall gender pay gap information across the group. As long as the legally required calculations are clearly provided, employers can enhance their reports as they wish on a voluntary basis where they consider this informative and appropriate. Larger employers may find it useful to break down their calculations further than required by the regulations. This may be helpful where they are operating in a number of different sectors, or where the jobs and levels of pay and bonuses are not obviously comparable.
Overseas employees and international jobs
The general guidance about overseas employees and international jobs has not changed. However, additional paragraphs have been added to this section of the guidance.
Casual workers and contractors
The guidance confirms that employees who receive no pay at all during the relevant pay period should be excluded from the gender pay gap calculations (although they would be included in the headcount).
Where there are self-employed contractors that meet the wide definition of employment under section 83 of the Equality Act 2010, they must be included in the headcount, and in the gender pay and bonus calculations where the employer has the data needed to carry these out.
Public sector bodies
The guidance contains some additional information concerning gender pay gap reporting for public sector bodies.
The guidance now states that allowances earned during paid overtime hours should be excluded from ‘ordinary pay’. Regarding backdated pay, the guidance now clarifies that if an employee receives a pay award or allowance in the relevant pay period backdated to January, only the amount attributable to the relevant pay period should be included.
The guidance also clarifies that recruitment and retention payments made at the start of employment, which are more in the nature of a bonus than an ongoing allowance, should be treated as incentive payments falling within bonus pay, rather than as allowances falling within ordinary pay. Including sign-on bonuses or buyouts within ordinary pay would mean that they would be included in the calculation of the gender pay gap if paid in the relevant pay period, but not otherwise. It is, therefore, more appropriate to treat these amounts as bonus pay.
Where an employer contributes to a pension by means of a salary sacrifice scheme, the guidance now states that the employee’s gross salary after the reduction should be used. This means that pension contributions are excluded from the gender pay calculations where they are paid by salary sacrifice.
The guidance covering bonuses has been expanded to include long service awards with a monetary value (cash, vouchers or securities). These should be included in the definition of bonus pay, but any other type of non-monetary award, such as extra annual leave, is instead to be treated as a benefit in kind and excluded.
The guidance also states that when valuing bonuses paid in securities, where the securities provided to employees do not give rise to a charge to income tax at all (for example, as part of a share incentive plan where shares are kept for a certain period of time), they will not be included in bonus pay.
Definition of full-pay relevant employee
The guidance clarifies how the definition of full-pay relevant employee is intended to work if employees are being paid less than their usual basic pay or piecework rate, or nil, during the relevant pay period, as a result of being on leave (they are not a full-pay relevant employee). Employees who receive no pay at all during the relevant pay period, whether or not this is as a result of being on leave, should be excluded from the gender pay gap calculations.
Calculating weekly working hours
The guidance now states that employees should be treated as having normal weekly working hours if they have the same contractual hours each week, even if they often work additional unpaid hours. For this type of employee, weekly working hours will be the contractual hours, not the actual hours worked.