The deadline for employers with 250 or more employees to comply with the Gender Pay Gap Regulations ("the Regulations") by submitting their gender pay gap information is fast approaching (30 March for public sector and 4 April for private and third sectors).

Whilst over 4,500 employers have published their figures, many have yet to submit their information. As is always the case, there are likely to be large numbers meeting the deadline at the 11th hour, there will no doubt be a number who will miss it.

What happens if employers do not meet the deadline?

The Equality and Human Rights Commission ("the Commission") published a report earlier this week, which outlines a strategy for enforcing the Regulations. A tough stance was taken with employers reminded that reporting their gender pay gap is compulsory.

The Commission has set out a staged process which it will follow to enforce the Regulations for private and third sector employers, accompanied by some useful flowcharts (which can be found here:

  • Stage 1: The Commission will write to the employer giving them 28 days to comply with the Regulations by retrospectively publishing their figures. Where the employer complies, no further enforcement action will be taken.
  • Stage 2: If the employer does not comply after this initial correspondence, the Commission will instigate an investigation. Terms of reference will be prepared and the employer will have an opportunity to make representations on those terms of reference before the investigation begins, and then on the draft report.
  • Stage 3: If the investigation reveals that the employer has not complied with the Regulations, the Commission will issue an unlawful act notice. The notice will give the employer 14 days to prepare a draft action plan setting out how it intends to remedy its continuing breach and prevent future breaches.
  • Stage 4: Within six weeks of Commission receiving the draft action plan, the Commission will either approve the plan or notify the employer that the plan is inadequate. If the plan is inadequate, the employer will have to prepare and submit a revised action plan within 21 days.
  • Stage 5: The Commission can apply for a court order if the employer does not comply with its own action plan.
  • Stage 6: If the employer fails to comply with the court order then it will be guilty of an offence and may be fined (no maximum limit).

The stages may seem a little longwinded and clunky, particularly if the non compliance relates to a failure to publish data, but the Commission is bound by the enforcement strategy and must demonstrate that is has undertaken an investigation and required an employer to come up with an action plan, before it is entitled to issue an unlawful notice or think about taking an employer to court.

As such, we will wait in anticipation to see how, in practice, the Commission will use its enforcement powers. That said, employers should ensure to publish their gender pay gap figures to comply with their legal obligations and to save the embarrassment of missing the deadline, and potentially facing an investigation which could see the Commission poring over its payroll information.