Equality Act 2010 (Gender Pay Gap Information) Regulations 2017

In brief

Regulations made under section 78 of the Equality Act 2010 requiring a relevant employer, an employer with 250 or more employees on the snapshot date of 5 April (reg 1(2)), to publish gender pay gap information each year by reference to its male and female employees (reg 2(1)). The six figures are the mean and median gaps in hourly pay, the mean and median gaps in bonus pay, the proportions of men and women paid a bonus, and the proportions of men and women in each quartile pay band (reg 2(1)(a)-(f)). They must be published within 12 months beginning with the snapshot date (reg 2(2)), with a written statement confirming their accuracy signed at a senior level (reg 14), on the employer's own website for at least three years and on a website designated by the Secretary of State (reg 15). Partners, including members of limited liability partnerships, are not relevant employees (reg 1(4)-(5)). A relevant employer does not include a person specified in Schedule 19 to the Equality Act 2010, or a government department or part of the armed forces not specified in that Schedule (reg 1(6)); the public authorities listed in Schedule 2 to the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 (SI 2017/353) have their own gender pay gap duty, with a 31 March snapshot date.

Key provisions

• SI 2017/172 reg 1 — Who must report: 250 or more employees on 5 April : A relevant employer is an employer who has 250 or more employees on the snapshot date, subject to paragraph (6); the snapshot date is the 5th April in the year to which the information relates (reg 1(2)). A relevant employee is a person employed by the relevant employer on the snapshot date, but not a partner in a firm, which includes a member of a limited liability partnership (reg 1(2), (4) and (5)). A full-pay relevant employee excludes anyone paid at a reduced rate or nil during the relevant pay period because of leave (reg 1(2)). A relevant employer does not include a person specified in Schedule 19 to the Equality Act 2010, or a government department or part of the armed forces not specified in that Schedule (reg 1(6)).
• SI 2017/172 reg 2 — The duty to publish six figures each year : A relevant employer must publish, for 2017 and each subsequent year, the difference between the mean and the median hourly rate of pay of male and female full-pay relevant employees, the difference between the mean and the median bonus pay paid to male and female relevant employees, the proportions of male and female relevant employees who were paid bonus pay, and the proportions of male and female full-pay relevant employees in the lower, lower middle, upper middle and upper quartile pay bands (reg 2(1)(a)-(f)), within 12 months beginning with the snapshot date (reg 2(2)). Data on a person employed under a contract personally to do work need not be included if the employer does not have it and it is not reasonably practicable to obtain it (reg 2(3)).
• SI 2017/172 regs 3-7 — What counts as pay, and how the hourly rate is worked out : Ordinary pay is basic pay, allowances, pay for piecework, pay for leave and shift premium pay, and excludes pay for overtime, redundancy or termination, pay in lieu of leave and remuneration not in money (reg 3). Bonus pay is remuneration in money, vouchers, securities, securities options or interests in securities that relates to profit sharing, productivity, performance, incentive or commission (reg 4). Regulation 5 defines the pay period and the relevant pay period, regulation 6 the six-step calculation of the hourly rate of pay, and regulation 7 the weekly working hours, including averaging over 12 weeks where hours vary.
• SI 2017/172 regs 8-13 — The calculations, all by reference to male and female employees : Regulations 8 to 13 set out how each figure in regulation 2(1) is calculated. For the quartile figures, the employer ranks each male and female full-pay relevant employee by hourly rate and divides them into four equal sections (reg 13(1)). Where employees receiving the same hourly rate of pay fall within more than one quartile pay band, the employer must so far as possible ensure that the relative proportion of male and female employees receiving that rate is the same in each of those bands (reg 13(2)).
• SI 2017/172 reg 14 — Signed statement of accuracy : The information must be accompanied by a written statement which confirms that it is accurate and is signed in accordance with regulation 14(2) (reg 14(1)): by a director or equivalent for a body corporate, a designated member for a limited liability partnership, a general partner for a limited partnership, a partner for any other partnership, a member of the governing body or a senior officer for an unincorporated body, and otherwise by the most senior employee (reg 14(2)).
• SI 2017/172 reg 15 — Where to publish : The information and the signed statement must be published on the employer's website in a manner accessible to all its employees and to the public, for at least three years from the date of publication (reg 15(1)). The employer must also publish the information, and the name and job title of the person who signed the statement, on a website designated by the Secretary of State (reg 15(2)).
• SI 2017/172 reg 16 — Review : The Secretary of State must from time to time review the Regulations and publish a report (reg 16(1)), the first within five years of 6 April 2017 and later reports at intervals not exceeding five years (reg 16(3)-(4)).

When relevant

For a private or voluntary sector employer with 250 or more employees on 5 April (reg 1(2)), and for HR, reward and data protection leads who prepare or sign its gender pay gap return. It governs the employer's reporting about its employees, not partners or members of a limited liability partnership (reg 1(4)-(5)). Use it when deciding whether the employer must report, how pay and bonus are counted (regs 3-13) and who signs and publishes the return (regs 14-15). Toolkit analysis: every figure counts only male and female employees, and the Regulations make no provision for non-binary employees or holders of a gender recognition certificate. That raises questions about how an employee's sex is recorded for the return and how gender recognition information is protected. The Regulations are silent on confidentiality; the published figures are aggregates, and the exceptions to the offence of disclosing protected information most likely to be relevant are information that does not enable the person to be identified and disclosure in accordance with an enactment (Gender Recognition Act 2004 s.22(4)(a) and (j), GRA2004), alongside data protection law (UK-GDPR). Public authorities listed in Schedule 2 to SI 2017/353 report under that instrument instead (GPG-SDA-REGS-2017). Decision support, not legal advice.