Gender pay reporting: Who is in scope?

ACAS and the Government Equalities Office have published guidance on the gender pay reporting requirements due in force from April.  Employers will be required to publish information on their gender pay gap by 4 April 2018.

The guidance leaves a number of questions unanswered, including: Which workers are in scope?

We know that the report must include employees, zero hours employees and casual workers, plus other workers who provide personal services. But there are some grey areas:

  • What about contractors who supply their services via their own service company, or an intermediary? The guidance suggests that the contractor would count towards the headcount of the service company, not the end user but it is not clear that this is the right approach.
  • What about agency workers who are employed by an agency but provide personal service to the client.  Do both the agency and client have to report on those workers?
  • What if the employer does not have sufficient information to calculate hourly pay of its contractors?  There is an exception to the requirement to publish pay data for workers/contractors if the employer does not have the data and it is not reasonably practicable to obtain it. What does “reasonably practicable” mean?  The guidance suggests that employers should ‘consider’ whether it is reasonably practicable to obtain the information by asking for it and new contracts should seek, where possible, to ensure that contractors are required to provide the information needed for compliance. However, as the guidance is non-binding, employers may take a different view.

The most important consideration for many businesses may be to ensure that how workers are categorised for the purposes of gender pay reporting is consistent with and does not undermine the employer’s employment status strategy in other areas.