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Equality Act 2010 (Gender Pay Gap Information) Regulations 2017

Volume 778: debated on Tuesday 24 January 2017

Motion to Approve

Moved by

My Lords, the Secondary Legislation Scrutiny Committee highlighted these regulations as instruments of interest in its 20th report, and I am delighted to be involved with this debate on such an important issue. These regulations are the first use of the power under Section 78 of the Equality Act 2010. Section 78 delegates power to Ministers to make regulations requiring employers in Great Britain with at least 250 employees to publish information showing whether there are differences in pay between their male and female employees.

These regulations will affect around 8,000 employers and more than 11 million employees. An estimated 3.8 million employees will also be covered by separate regulations laid last week that will apply to the public sector. In total, the new regulations will cover nearly half of the workforce.

The gender pay gap is not about men and women being paid differently for the same job. Unequal pay has been prohibited since 1975. The gender pay gap is a measurement of the difference between men and women’s average earnings. The UK’s overall gender pay gap has fallen over time. It was 25% 10 years ago and is now 18.1% according to the latest ONS statistics. While this is moving in the right direction, progress is still too slow and voluntary reporting has not led to sufficient progress. According to McKinsey, eliminating work-related gender gaps could add £150 billion to our annual GDP by 2025.

Following two public consultations and extensive stakeholder engagement, the Government are delivering their manifesto commitment to require large employers to publish a range of complementary gender pay gap measures every year. Employers will be required to publish the difference between the average hourly rate of pay for male and female employees, calculated using the mean and the median. This will give employers a better understanding of their gender pay gap.

The regulations cover bonuses too. ONS figures show that more than £44 billion was paid out in bonuses across the UK economy during the 2015-16 financial year. We are requiring employers to publish the difference between the average bonuses paid to men and women as well as the proportions of male and female employees who receive a bonus. This will encourage employers to ensure that their practices for awarding bonuses are fair and transparent.

Fewer women than men are employed in senior and higher-paid positions. Requiring employers to report on the proportions of men and women in each quartile of their pay distribution will ensure that they consider whether there are any blockages to women’s progress. It could also be valuable in making comparisons with competitors who may be benefiting from actively nurturing female talent. The regulations will require employers to publish the information on their own website every year in a manner that is accessible to employees and the public. A written statement signed by a director or a senior employee must also be published to confirm the accuracy of the information. As well as appearing on an organisation’s website, the information will also be published on a government-sponsored website. Requiring the information to be published in this way will establish a database of compliant employers and make all published information available in one place.

The regulations do not create any additional civil or criminal penalties. Failure to comply would be an “unlawful act” and fall within the existing enforcement powers of the Equality and Human Rights Commission under the Equality Act 2006. The Government can consider alternative enforcement mechanisms if the level of compliance is not satisfactory. The Secretary of State will review the regulations five years after commencement.

The Government have worked closely with ACAS to develop clear guidelines to help employers implement the regulations, and they will be published shortly. Transparency is not a silver bullet but it will incentivise employers to analyse the drivers behind their gender pay gap and explore the extent to which their own policies and practices may be contributing to that gap. These regulations are only one element of the Government’s strategy to modernise workplaces. We have already extended the right to request flexible working to all employees; introduced a new system of flexible parental leave; and committed to providing 30 hours of free childcare a week for working families.

The principle of greater transparency on gender pay differences has cross-party support. I hope that noble Lords will support the regulations. I beg to move.

I welcome the noble Baroness to her new post. I hope that every regulation or piece of legislation that she introduces will be as good and progressive as these regulations. I welcome these regulations on behalf of my party, and especially all those colleagues who worked tirelessly in coalition to make this legislation a reality. I am so glad that the Conservative Government have kept their word and implemented this Liberal Democrat policy, which I note found its way into their 2015 manifesto, although it had not been there in 2010. I pay tribute particularly to the hard work and sheer determination of Jo Swinson, who got this through against the odds.

Equal pay and better gender representation in business is good for the economy as well as helping to create a fairer society. As Jo said:

“Businesses have a choice, to view gender pay reporting as a burden, or as a catalyst to seize an opportunity. When competitive advantage is increasingly about attracting and developing the best people, a better understanding of how you're valuing and rewarding your people is powerful. Gender pay data may be uncomfortable, but at least it can no longer be ignored”.

As many noble Lords may know, although progress is being made, figures by the Fawcett Society show that women are essentially working the last month and a half of the year for free. Looking at it in these stark terms, we can all see how ludicrous this is. However, as the noble Baroness has already said, this legislation will not be a silver bullet as we would all wish. More needs to be done.

Girls and women outperform men at every stage in their educational life, yet we constantly see women not reaching the top jobs. We must ask why this is. Report after report points to women missing out on bonuses, promotions and pay rises as they get older. When the babies come along, or other caring responsibilities arise, it is too often the women who makes an economic sacrifice. As the Minister has already said, one of the steps that we introduced in coalition was equal parental leave—a small step in making men and women equal, and giving men a better opportunity to bond with, and care for, their babies.

Therefore, let us focus today on another good, progressive piece of legislation. Let us welcome these regulations, the better-informed debate they will engender and the stepping stone they will provide to better workplace equality.

My Lords, I congratulate the Minister on her first performance at the Dispatch Box and thank her very much for bringing these regulations before us tonight. I look forward to working with her again.

We are pleased that the Government have at last brought this statutory instrument on the gender pay gap before us tonight, as it was part of Labour’s Equality Act 2010. This Act introduced mandatory pay audits under which companies employing more than 250 people have to publish details of their male and female staff’s pay. We have continually asked the Government to live up to their duty to ensure that big companies publish information about their gender pay gap. I am glad to say that the Government have finally acted on this, but it has taken them seven years to bring this into force. It was a simple piece of legislation that Labour passed, legislation that would make the workplace much fairer. It is interesting to note that almost every major piece of legislation that has improved the lives of working women has been introduced by a Labour Government.

It is unfortunate that these regulations do not contain any enforcement provisions, or sanctions for non-compliance or for publishing inaccurate or misleading reports. I am aware that the Equality and Human Rights Commission could enforce these rules, as the Minister said, but I understand that it does not have the proper powers or resources to do so. In response to the Government Equalities Office’s consultation, Closing the Gender Pay Gap, the commission said that it would,

“require additional powers, and resources, to enable it to enforce compliance with the regulations, because its current powers are not suitable for enforcing, in a proportionate manner, a failure to publish”.

It therefore seems from this response that this is not something that the Equalities Commission can do at the moment. The interesting thing about this consultation is that about two-thirds of respondents agreed that such a civil enforcement system would ensure compliance. It is unacceptable that the Government have watered down these regulations and it seems to demonstrate their lack of true commitment to ending the gender pay gap.

We know that low pay is a significant factor in the gender pay gap. Women hold the majority of minimum wage jobs—some 59%—and female part-timers hold 41% of minimum wage jobs, almost twice as high as their share of all jobs. The sectors with the most minimum wage jobs are hospitality and retail, which account for just over 45% of minimum wage jobs, followed by social care, cleaning and employment agencies, which each account for between 6% and 7 % of such jobs. It is mainly women doing these jobs, and so much work still needs to be done on this front. That is why enforcement is crucial.

As of the last Autumn Statement, 86% of net savings to the Treasury since 2010, through tax and benefit changes, had come from women. It is a shame that the Government have repeatedly refused to conduct a cumulative gender impact analysis of their policies. Part of the reason that the Government have been unable to significantly shift the gender pay gap is because they do not seem to have a strategy to address chronic low pay in sectors such as retail, care and hospitality, where many women work. I am sorry to say that the Government are turning the clock back on gender economic equality. As a result of their policies, they have forced women to pay the price for their austerity failures. With the gender pay gap still at more than 18%, women are still working for lower wages than men, and over a lifetime that can result in a significant loss of wages.

Under these regulations, employers must analyse their gender pay gap each April and publish their gender pay gap report within 12 months, and they must report annually on their websites. They must also upload the information to a government website, but details of this website have still not been released. I understand that the Government plan to introduce similar reporting obligations for public sector employers within the same timeframe.

I would like to hear from the Minister on the following points. Will she tell us whether the Government will give the powers and resources to the Equality and Human Rights Commission in order for it to be able to enforce compliance with the regulations? Otherwise, it is difficult to see how it can possibly carry out this work, bearing in mind that its budget has been cut from £62 million in 2010 to £17.4 million by 2020. Will the Minister say when details of the government website will be released? Regarding public sector employers, will she say when the regulations will be put to Parliament? I look forward to the Minister’s response.

My Lords, I thank noble Lords for such an interesting debate this evening, particularly the two noble Baronesses for their kind welcome. Feedback is, of course, very welcome. I would like to spend a few moments addressing some of the points that were made.

Turning first to non-compliance and sanctions, it is the case that the Equality and Human Rights Commission has the powers under the Equality Act 2006. The way that we are going to approach this is that the system has to be up and running. The Government will review the sanctions in due course, but only when the prevalence of, and, perhaps as importantly, the reasons for, non-compliance have been established. It is certainly under review, but it should also be noted that the majority of organisations responding to the consultation did not raise concerns about the lack of financial penalties. The other reason why compliance will be slightly higher than otherwise is that competition within organisations in the same sector will, I think, be quite fierce. We will have to see where we go on that, but I know that it will be under review.

I listened with interest to the entreaty from the noble Baroness, Lady Gale, on low-paid workers. I understand that she was approaching that from a female perspective, but let us not forget that the Conservatives have raised 1 million people out of income tax altogether. There were lots of positive things being done for low-paid workers, including the minimum wage going up. She also mentioned the pay gap, which is still at 18.1%. I agree, but it is going down, which is very good. Actually, compared with other countries, we do very well. The gap in Finland is 18.4% and in Austria it is 22.25%. The interesting thing about what they are doing with their gender pay gap reporting is that they are requiring companies to gather the information, but then not requiring it to be published. I am therefore happy that the proposals that we have in front of us really are world-class. We are taking a lead in these, which is very positive.

The noble Baroness also asked about the website. As we know, the snapshot date is 5 April this year, and from that date, the companies will be able to publish their data as their reporting cycle moves through. Of course, it can be up to a year before they actually publish. The government-sponsored website will allow us to closely monitor compliance levels and we will launch it to coincide with the commencement of these regulations. I know that I will be looking with interest to see what the outcomes are.

The noble Baronesses also asked about the public sector regulations and when we might see them. They were laid on 18 January and will be subject to separate debates in both Houses shortly. Subject to parliamentary approval, these regulations will be in force by March 2017, and the specified public bodies will need to publish their gender pay gap before March 2018. By 2018, therefore, we will have a whole lot of data to look at, which is excellent. Both sets of regulations will require the same gender pay gap calculations, so they will be comparable, and noble Lords may have seen that the Government published their response to the consultation on public sector gender pay gap reporting earlier today.

It is not acceptable that the gender pay gap still exists in this day and age. These regulations will create opportunities for individuals and employers by driving action that promotes greater gender equality in workplaces across the country. I am pleased that the regulations are broadly supported by this House and that the underlying policy intent is agreed. We must accelerate action to close the UK gender pay gap. On that basis, and if there are no further questions, I hope that noble Lords will see fit to support the regulations and I commend them to the House.

Motion agreed.