Below Lorraine Heard, Legal Director at transatlantic law Womble Bond Dickinson, explains why the EHRC is currently raising questions in a public consultation regarding its own powers to enforce gender pay gap regulations.
Under the Equality Act 2006, the Equality and Human Rights Commission (EHRC) has a range of enforcement powers to ensure compliance with employment legislation. They include:
- The power to investigate possible non-compliance with a legal requirement;
- The issue of an unlawful act notice if the EHRC is satisfied that an unlawful act has been committed;
- Requiring the production of an action plan;
- Agreeing the terms on which further action may be prevented; and
- Seeking an injunction to prevent an unlawful act.
In the case of public sector employers, the EHRC may also assess compliance with a Public Sector Equality Duty and issue a compliance notice.
The EHRC has produced a draft document for consultation purposes detailing the approach it proposes to adopt in relation to enforcement of the Gender Pay Gap Regulations ("GPGR"). Its stated focus will be on helping organisations to comply with their reporting requirements, not on trying to catch them out. In the first instance this involves educating employers about the action they must take and seeking an informal resolution where employers appear not to have complied with the GPGR.
In 2018/19 the EHRC's enforcement activities will centre on employers who do not publish the information required by the GPGR and only if capacity allows will it take action against employers for the publication of inaccurate data.
The draft document contains detailed steps that the EHRC will follow in respect of investigations into non-compliance with the GPGR and the approach it will take to formal court enforcement proceedings. The EHRC originally argued that the draft GPGR needed to be amended to provide it with the power to take enforcement action against an employer who was viewed as having failed to comply. It has the power to take action in respect of 'unlawful acts', which are defined as being contrary to the Equality Act 2010. The requirement to publish gender pay gap information does not derive from the Equality Act 2010 but from the GPGR.
Section 78 of the Equality Act 2010 notes that the GPGR may provide that a failure to comply should be treated as an offence or provide for the manner in which they are to be enforced. The GPGR do neither. This prompted the EHRC to conclude:
"Accordingly, in our analysis, under the draft regulations the requirement to publish gender pay information is not enforceable by the Commission or otherwise."
It is interesting therefore that the EHRC is now setting out the detail of the manner in which it will take the enforcement action it does not believe it has the power to take!
In its policy document, the EHRC notes that an employer may appeal to the court against an unlawful act notice including on the basis that they deny that they have committed an unlawful act. In effect this puts the burden on any employer which is subjected to enforcement action by the EHRC to challenge the EHRC's enforcement powers. Placing an employer in the middle of what appears to be something of an unresolved disagreement between the Government and the EHRC is a totally unsatisfactory state of affairs. It is hoped that the EHRC resolves the confusion regarding its powers to enforce the GPGR as a result of the current consultation process, which ends on 2 February 2018.
A link to the relevant page of the EHRC website is here for anyone wishing to respond to the consultation.
