Enforcing Gender Pay Gap Reporting Obligations
The Equality and Human Right Commission (EHRC) is consulting on its plans for pursuing employers who do not comply with their gender pay gap reporting obligations.
Private and voluntary sector employers who employ 250 or more employees have to publish gender pay gap information by 4 April 2018. Public sector employers have to comply by 30 March 2018.
For 2018/19, employers who have not published the required gender pay gap information will be the EHRC’s first port of call, with employers who have published inaccurate information only being targeted if it has capacity to do so. If large numbers of employers have failed to publish the required information, the EHRC plans to divide employers by industry and take enforcement action against a tranche of randomly selected employers from within each industry.
The EHRC will seek informal resolution in the first instance. It will write to the employer, drawing their attention to their obligations. The employer will have to acknowledge receipt of the letter within 14 days and comply with their reporting obligations for the past year within 42 days of the letter. They will also have to confirm that they will comply on time for the current year. Provided that they comply, no further enforcement action will be taken.
If formal action is required, the EHRC will investigate and offer the employer the opportunity to enter into a written agreement to comply within an agreed time period for the past reporting year and on time for the current reporting year. Provided that the employer complies with the agreement, no further enforcement action will be taken. If the employer fails to comply with the agreement, the EHRC will normally seek a court order requiring the employer to comply.
Where a private or voluntary sector employer does not accept the offer of an agreement and the investigation concludes that the employer has breached its gender pay gap reporting obligations, the EHRC will issue an unlawful act notice. This will require the employer to prepare an action plan for remedying the breach and preventing further breaches. The action plan has to be approved by the EHRC. If an employer fails to comply with an approved action plan, the EHRC will seek a court order. An employer who fails to comply with a court order without reasonable excuse will be liable to an unlimited fine.
Similar provisions apply for public sector employers. The EHRC will investigate and assess whether the employer has failed to comply with the equality duty (publishing the gender pay gap information). Where it finds that the employer has failed to comply, it will issue a notice requiring it to comply and to provide written information of the steps it will take to comply. If the employer fails to comply the EHRC will seek a court order.
Responses to the EHRC’s consultation Closing the gap: Enforcing the gender pay gap regulations are required by 2 February 2018.
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