Flesh on the bones? Pay gap reporting guidance published

When the draft Gender Pay Gap Reporting Regulations (the Regulations) were published in December 2016, the government promised further guidance to help employers comply with their obligations. That guidance was published early last week. It is in draft form until the draft Regulations are approved.

The guidance explains in relatively simple terms what the Regulations require, often with accompanying examples. Some of the points covered by the guidance include:

•  Post-salary sacrifice pay should be used to calculate the gender pay gap figures, even where participation in the scheme is on a voluntary basis;

•  Pay is calculated before deductions made at source, such as pension contributions;

•  Someone who is paid less during the relevant pay period for reasons other than being on leave (for example because they are on strike) should still be treated as a full pay relevant employee; and

•  How to calculate weekly working hours for employees who do not     have normal working hours for various reasons, including how to deal with on-call and sleeping in arrangements.

Further details of the government website to which relevant information has to be published will be available before the Regulations come into force.

There is little further information on share based bonus schemes, other than to confirm that bonuses will need to be included in the bonus gender pay gap calculations in the year in which the employee incurs a tax charge. Particular issues are likely to arise in relation to how to pro-rate share based bonuses that are paid during the pay reference period but which have vested over a period of time; the guidance does not address these.

Much of the guidance outlines what ACAS and the government regard as "best practice" in relation to pay gap reporting, even where this is not actually required by the Regulations. For example, employers are encouraged to include contextual narrative reporting alongside their raw gender pay gap figures, to assess the reasons for their gender pay gap and to develop action plans to close it.

Job done – review of tribunal fees concludes no changes needed apart from fee remission extension

A Ministry of Justice review has found that the introduction of employment tribunal fees in 2013, combined with mandatory ACAS conciliation a year later, has resulted in a substantial reduction in claims. The review concludes that the government's three main objectives of transferring a proportion of tribunal costs to users; encouraging people to use alternative ways of resolving disputes; and protecting access to justice, have been met. The review also says that there is no conclusive evidence that fees have prevented claims from being brought. 

The review rejects the conclusions of two Parliamentary Committees that the level of fees should be substantially reduced. In particular, it found no evidence that the impact of fees on pregnancy and maternity discrimination claims was such that they should be treated differently. The Women and Equalities Committee had also recommended an extension of the three month time limit for bringing these claims – this too has been rejected.

However, the fall in tribunal claims has been significantly greater than was estimated and there is evidence that fees have discouraged some people from bringing proceedings. As a result, the government is consulting on proposals for an adjustment to the fee remission scheme ("Help with Fees"). The proposal is to increase the monthly income threshold for individuals to qualify for a fee waiver, from £1,085 to £1,250 – broadly equivalent to a 40 hour week on the national living wage.

In addition, some claims relating to insolvent companies, such as claims for redundancy payments from the National Insurance Find, will no longer require fees. This change is being made with immediate effect.

Consultation on the fee remission proposal closes on 13 March – the same month that Unison's legal challenge to the introduction of fees is expected to be heard in the courts.

Friends of the family? Latest initiatives from the Women and Equalities Committee

Last year the Women and Equalities Select Committee of MPs published a report on pregnancy and maternity discrimination. The Committee called on the government to take urgent action in a number of areas, including legislating to give a very high level of protection from redundancy until six months after the end of maternity leave. The government has now responded.

In general, the recommendations have not been adopted, the government taking the view that rights in this area are adequately protected by the existing law, or (in the case of the discrepancy between rights for workers as compared to employees) will be covered by the Taylor review of modern employment practices, due to report later this year. However, there is now a commitment to consider strengthening rights for pregnant women and returners on redundancy, in the light of statistics on the numbers of women being made redundant or feeling compelled to leave their jobs. The Committee's recommendation was to adopt a system, similar to that in Germany, under which employees can be made redundant only in very exceptional cases, such as liquidation, with protection applying throughout pregnancy/maternity leave and for six months afterwards.

Meanwhile, the Women and Equalities Committee has launched an inquiry into how employers can better support fathers in the workplace. This initiative was triggered by a finding in the Committee's gender pay gap report that shared parental leave will have a predicted take-up rate of just 2%–8%. The inquiry was also prompted by the latest research results from Working Families, revealing that almost half of working fathers would like to downshift for a better work-life balance.

Some of the issues the Committee will look at between now and 1 March include:

•  employment-related barriers to fathers sharing caring roles more equally;

•  challenges for fathers working in particular employment sectors;

•  potential policy or legislative changes to support fathers – Working Families has called for a new extended period of paid paternity leave;

•  examples (in the UK or internationally) of best practice among employers that could be taken up more widely.

Finally, the Committee has published a report on "High heels and workplace dress codes", released jointly with the Petitions Committee – the report was triggered by a petition to make it illegal to require women to wear high heels at work which will be debated in Parliament next month. The report asks the government to take urgent action to improve the effectiveness of the Equality Act in protecting workers from discrimination in this area and recommends that employment tribunals should be able to ask for more effective remedies for breach, such as financial penalties. The report includes medical evidence suggesting that women who have to wear high heels for extended periods of time could suffer long-term health problems.