COVID and gender pay gap reporting

It's no secret that the coronavirus has had a negative effect on sex equality in the workplace. Women have taken on more of the burden of childcare and home-schooling.  They are also more likely than men to be employed on zero hours or casual contracts, and so are more likely to have experienced reduced hours and pay (and less likely to have had their pay topped up if they have been furloughed).  And they are over-represented in some of the hardest-hit sectors, such as retail and hospitality.   

The combined effect of these factors will pose some problems for employers wanting to highlight their progress towards workplace equality.   Many employers were spared scrutiny last spring when gender pay gap reporting obligations were suspended for 2019/2020 (although some reported figures voluntarily).   Although the reporting obligations will apply for 2020/2021, the Equality and Human Rights Commission has announced that it won't take any enforcement action until 5 October 2021, meaning that employers have a little more time to gather the data and consider how to present it.  

One point for employers to consider is when they will be obliged to include furloughed staff in their pay figures.   The EHRC has helpful advice for employers on when they need to be included and when they don't.   In short, if the furloughed staff did not receive full pay during the furlough period, they should not be included in calculations of mean and median pay gaps based on hourly pay, or when assessing the number of men and women in each pay quartile.  This will avoid some skewing of the figures due to furlough, but many employers may still end up with other figures painting them in a negative light (e.g. where bonuses have been affected).   One way or another, the figures for 2020/2021 are likely to be an aberration and require some explanation.  This is primarily a reputational issue rather than a legal one, so businesses need to think creatively about how they can present a more positive picture. 

One option is to report additional data on a voluntary basis, to highlight areas where there is a more positive story to tell.  For example, employers may wish to publish data on the number of staff working flexibly, which has historically been seen as an indication of a progressive and fair workplace.   Although in some cases this has been necessitated by the pandemic rather than being an active choice by the business, it can be presented in a positive light, particularly if the employer can explain how this will be maintained after the pandemic. 

For other employers, it may be useful to collate and publish some data for 2019/2020 as well as 2020/2021, as this may also help to put the more recent data in context.  

Another option is to include more narrative.  The UK is unusual across Europe in not requiring employers who report on their gender pay gap to outline measures they will take to address it or another narrative material - but many employers make a virtue of publishing their plans to improve workplace sex equality.   Employers may want to publish narratives detailing how they will approach flexible working and support for those with children and caring responsibilities in the future - widespread remote working means that many employers have made the necessary investment to support more flexible ways of working.   The pandemic also has seen some employers putting in place innovative support for staff, such as emergency childcare provision.   Others have put in place support for victims of domestic violence, greater support for staff with medical conditions and similar schemes.   All of this can help to tell a positive story about the business' commitment to equality, and put apparently dismaying raw data into context.