ACAS and the Government Equalities Office (GEO) have recently produced a final version of non-statutory guidance to the Gender Pay Gap Regulations; which can be found here. Amongst other useful clarifications, guidance is given on compliance by group companies, how to treat overseas employees and pension contributions via salary sacrifice.
Key changes and clarifications
Group companies
Each legal entity with 250 or more employees within a group must report separately on its gender pay gap and gender bonus gap. In addition, a corporate group may voluntarily publish details of the overall gender pay gap information across the group.
Overseas employees and international jobs
Where an employee is employed by an overseas entity and is seconded to work for a company in Great Britain, that company will need to consider whether that person is their employee within the meaning of the regulations. If they are, the employer will need to include this employee in their report.
The guidance also clarifies that, where currency needs to be converted to carry out the calculations, an employer should generally use the exchange rate that applied at the date of payment.
Pension contributions
The guidance clarifies that pension contributions are excluded from the gender pay calculations where they are paid by salary sacrifice. Therefore the appropriate figure to use for gender pay gap purposes is the gross salary after the reduction.
Partners and LLP members
The final guidance states that partners, where they would usually also be considered employees, should be included in the employee headcount for establishing whether the employer has 250 or more employees but should not be used as part of any gender pay gap calculation.
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 for establishing whether the employer has 250 or more employees).
Where there are self-employed contractors who meet the wide definition of employment, they must be included in the headcount and in the gender pay gap and bonus calculations where the employer has the data to carry these out.
Other clarifications
The guidance clarifies what is included in the definition of ordinary pay, what to include in bonus pay, how to treat employees who are being paid less than their usual basic pay during the relevant pay period, as a result of being on leave, and further details about how to calculate weekly working hours.
Comment
The revised guidance provides some welcome clarification. However, it is still not always consistent with the wording of the regulations. In practice, the guidance suggests that employers will have a reasonable amount of discretion when calculating their gender pay and bonus gap figures, particularly given the lack of enforcement provisions or sanctions.
Frances Rollin