Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
What key learning points can be taken from the BBC’s revelations?
There is NO requirement to publish the names of your employees, or even the names of your highest earners.
The BBC did not publish the information directly as a result of gender pay reporting requirements. In fact, it was forced to reveal more specific information about pay, including names, as part of its royal charter. The BBC fought against having to publish the list of names and salary information, claiming that it would create a culture of poaching by its competitors and drive up salaries in the media industry. However, it was forced to do so in order to address whether it is delivering value for money - in other words, whether it pays in line with the market.
When publishing your gender pay information, there is no requirement to publish the names of your highest earners, or even the names of those in your ‘top band’ of earners. Furthermore, there is no requirement to publish specific salary information. Whilst doing so might seem transparent, there is a risk of being in breach of the Data Protection Act if you publish more information than that to which you are obliged. For information on what you are required to publish, see our previous briefing.
However, it remains to be seen whether there will be more focus on gender pay information in sectors that are either heavily regulated or where value for money/public sector money is more likely to be under scrutiny.
Having a gender pay gap is not the same as unlawful equal pay
Whilst the revelations mean that the BBC could certainly now face claims for equal pay and sex discrimination, having a gender pay gap does not automatically expose you to claims for equal pay, although this could be a real risk.
On the face of it, the BBC appears to be paying very different salaries for employees doing the same work or work of equal value, thereby exposing them to claims for equal pay. If employees bring claims, the BBC will need to show that the difference in pay is not directly on the grounds of sex. They will need to show that the difference is due to other factors such as viewers’ demands and preferences (which is where the BBC seem to be positioning their reasoning) but also, where there is a significant disparity between groups of women and men doing comparable work, that the differential treatment is justified.
If you have a gender pay gap, it is worth understanding:
- What is causing the gap;
- To what extent is the gap based on other (non-discriminatory) factors, such as the nature of work undertaken? For example, are historically lower-paid teaching assistants predominantly female due to the work flexibility that the role offers? Are your care staff mostly female? Do men dominate your housing tradespeople posts?;
- The gender makeup of your workforce;
- The impact of part-time workers; and
- Other distorting factors such as salary-sacrifice schemes.
Your narrative will be a key tool in managing reputational risk
One thing that the BBC has not sought to do in much detail is explain the reasoning behind their gender pay results.
However, the gender pay reporting regulations allow you to produce a detailed narrative to explain gaps in your figures or, if necessary, to explain why one gender dominates the top earners in your organisation. In our view and experience, the narrative is a really important tool to explain your gender pay reporting results, as it will allow you to anticipate concerns that your employees and others may have about the figures and, to the extent you are able, explain the reasons for them. Where you have a significant gender pay gap, this may help to manage your employees’ reaction and further reputational damage. As there are no requirements made by the regulations, what information you include in the narrative is within your control. We strongly urge employers to talk to us about our key tips for producing your narrative.
Early reporting is key
Whilst gender pay reports do not have to be published until 4 April 2018, early reporting, or at least gathering the data now, is allowing employers the opportunity to address issues that arise and prepare a thorough narrative. It also allows employers to prepare an action plan for how they will tackle any gender pay issues that arise, which can be an invaluable way to manage reputational issues.
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