Fiona Macdonald: What impact has the delay in gender pay gap reporting had?

In February 2021, the Equality and Human Rights Commission (EHRC) announced that, due to the Covid-19 (Coronavirus) pandemic, enforcement action for failing to comply with the Gender Pay Gap Regulations for the 2020/2021 year would be suspended for six months.

This came after enforcement action was suspended for 12 months the year before, in respect of 2019/2020 data, and the government website states that employers will not be expected to submit that data at a later date.

The EHRC simultaneously encouraged employers to submit their 2020/2021 gender pay gap information on time if they can, but numbers are considerably down compared with the pre-pandemic level.

It is not surprising that many companies have not yet submitted their gender pay gap data for 2020/2021. While it is heartening to see that nearly 4,000 employers have managed it so far, deadlines do provide a powerful incentive. With several months still to go, it may well make sound business sense for many employers to prioritise more immediately pressing matters and focus on their submission later.

These pressing matters may include furlough complexities, hybrid working arrangements combining remote working and returning to the office, questions around vaccination and testing, and of course, Brexit. This means that without further enquiry, it is difficult to attribute the lower number of reports currently submitted solely to the enforcement suspension.

Nor is it straightforward to infer that in suspending the obligation last year and granting more time this year, the EHRC is demonstrating a lack of regard for gender equality. The government also extended time to pay VAT and get MOTs for example, and no one is suggesting they do not value VAT or road safety.

The fact that gender inequality remains a problem at all in the twenty-first century workplace is the true scandal. The pandemic has brought many businesses to its knees and destroyed others entirely, so one can understand the rationale for offering flexibility in reporting on the pay gap where possible.

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It will be interesting to see how many employers submit their gender pay gap data by this October, when enforcement resumes, and scrutinise the data itself, to see whether the gap is closing. If the number of submissions is still significantly lower than the pre-pandemic level, or if the gap has widened, we will need to ask why.

Fiona Macdonald is an employment consultant solicitor at Keystone Law