EHRC publishes draft penalties for failure to disclose gender pay gap data

Gender remains on the agenda as we move into the new year! The Equality and Human Rights Commission has published its draft enforcement strategy for pursuing large private, voluntary and public sector employers who fail to comply with the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017. Under the Regulations, private and voluntary sector employers with 250 or more employees in the UK are required to publish data surrounding their gender pay gap, with the first reports due by the 4^th April 2018.

The draft strategy’s main focus is on enforcement against employers who fail to publish the information required. However, interestingly if the EHRC has capacity it may also take action against employers for publication of inaccurate data.  Action for inaccurate data will be of real concern to employers, particularly if aggrieved employees are able to cause such investigations to be instigated.  Employers already find themselves sometimes targeted for onerous data subject access requests, where motive for seeking data is irrelevant, but often a costly and time-consuming exercise.  Could the enforcement strategy be a means by which employees bring employers to the negotiating table for example?  Employers will need to think very carefully about how they present their gender pay data, not only externally, but also for internal consumption too.  

The EHRC has confirmed that the first port of call would be to engage cooperatively and informally with employers who were in breach. Where formal enforcement action is required, the EHRC will use the most appropriate action from their range of powers which include:

• Carrying out an investigation into whether they have committed the suspected unlawful act under section 20;
• Entering into written agreements under section 23;
• Applying for a court order;
• Issuing an unlawful act notice and requiring action plans;
• Seeking unlimited level 5 fines and summary convictions.

This draft strategy is open for consultation until 2 February 2018. We will keep you updated on the latest developments.