In the wake of the BBC’s gender pay gap, following its enforced public disclosure of the salaries (of £150,000 or more) it pays to its “talent”. Some who witnessed and have written about it have been quick to jump to conclusions – and not necessarily the right or fair ones – about the apparent disparities which it revealed. Article from Gary Freer, Head of the UK Employment Team – Bryan Cave LLP.
There are some myths which need to be busted before they become “urban”, and some telling facts which have been overlooked. One little known, but telling, fact is that in the UK working population as a whole, there are two different gender pay gaps, as reported by the Office for National Statistics in October 2016. Among those who work full time, there is still a substantial gap – 9.4 percent – in favour of men.
This has been reduced from a gap of 27.5 percent when records began in 1997, and has steadily narrowed. By contrast, among those who work part time there is a gap of 6 percent in favour of women – and that gap has widened since 2000. The gap across the BBC’s workforce as a whole – not just the “talent” at the top end – is broadly in line with these national trends.
Some commentators have predictably jumped to the conclusion that the gender pay gap – in the BBC and/or the national workforce – must have been caused by unlawful discrimination. That is unlikely to be a significant cause. While there will be some examples of disparities which could not be justified in an Employment Tribunal by reference to, for example, experience and market value, the main causes of the gender pay gaps are complex and elusive, as the Government has recognised. For example, the fact that more women than men care for children and elderly relatives has an impact, particularly among the higher paid. Within the broadcasting staff of the BBC, there may still be issues about age too.
What approach will persuade employers to continue to narrow the gap? The Government has attempted to give employers of more than 250 staff a “nudge” by introducing Regulations which came into effect on 6th April this year. These will require them to publish a gender pay gap report no later than 4th April 2018 and annually thereafter. This report must include overall gender pay gap figures for relevant employees, calculated using both the mean and the median, the proportion of males and females who received a bonus (but not overtime or benefits in kind) and an optional narrative (which many intend to include) explaining the reasons for any disparities and the steps being taken to deal with them. There is no requirement to reveal details of the sums paid to any individuals (by contrast with what the BBC has recently been forced to reveal, with predictably controversial results).
At first reading, these Regulations appear to be complex, confusing, misleading and burdensome, and without any real teeth – there are no sanctions (such as fines) for failure to comply. However, the signs are that the Regulations will have the intended effect and organisations are taking steps to comply. In June 2017 Mercer published a survey of the steps being taken by public and private sector employers, and of some of the main issues which concern them. Some of the findings are striking: many are, for the first time, doing a detailed analysis and audit of their pay and bonuses for gender bias, and are making an effort to understand and consider why their gender pay gaps exist; many have found that the gap between full time employees is bigger (and worse) than they had expected; the main driver for trying to narrow the gap is concern about damage to reputation, among their current staff, future recruits and the general public, (and these concerns about reputation risk will surely be reinforced after having seen the destructive effects of the BBC’s recent naming and shaming); and the risk of legal claims is a relatively low concern for most.
Some more enlightened employers have for several years already been collecting data and conducting their own analysis on a voluntary basis and using it to take steps to close the gap. In many cases, this has led to changes in how they recruit (particularly at senior level) and, crucially, how they retain talented women, get them back and progress their careers after they take time out to have a family.
The gender pay gaps have already (in the case of full time workers) narrowed substantially and that statistic is heading in the right direction. If fair and reasonable conclusions are drawn, and after the virtue signalling (some of it strikingly ill informed) has died down, the BBC’s ordeal might give fresh impetus to the progress which, increasingly, employers have accepted is in their own self-interest to make.