YourNews: The latest information on Gender Pay Gap Reporting, Changes to Data Protection law and the National Minimum Wage.

Gender Pay Gap reporting

Employers with 250 or more employees on the “snapshot date” of 5 April 2017 will be covered by the new gender pay gap reporting legislation.  Employers will have to make six different types of calculation, including the mean and median gender pay gaps within their organisation.  Guidance from ACAS emphasises the benefits to employers of publishing their data early, and of formulating an action plan to reduce the gender pay gap within their own organisations.  In particular, ACAS points out that:

• employers who publish their figures early may be seen as leaders in their sector;
• publishing early can have a positive impact on recruitment, retention and awards of contracts;
• published action plans are likely to enable an employer to attract a wider pool of applicants for vacancies; and
• customers may well be influenced by employers who are seen to be taking the issue of the gender pay gap seriously.

Certainly, finding the right message to publish alongside the six gender pay gap calculations will be crucial for employers.  HR professionals will no doubt have to rely on their marketing consultants, as well as their finance team, to help them deal with this new headache.  However, as anything published by employers about their gender pay gap is likely to attract interest from lawyers preparing equal pay claims on behalf of employees, legal advice should always be obtained before an organisation publishes any commentary on its gender pay gap.

Changes to data protection law

The stakes will be raised for all organisations when new legislation on data protection – brought in by the EU General Data Protection Regulation – becomes law across the EU in May 2018.  Even though the UK is preparing for Brexit, the Government confirmed on 31 October that it will be implementing the new legislation.  The new rules will apply to all organisations which process personal data, but certain provisions will be of particular importance to employers.

• Consent to the processing of personal data will have to be “freely given, informed, specific and explicit“. It is likely that a clause in the employment contract giving consent to processing personal data will not be sufficient in future.
• Subject access requests will be easier for employees – employers will not be able to charge a fee for subject access requests and will have to respond within one month.
• Right to be forgotten – new rights will allow employees to require their data to be completely erased in certain circumstances.
• Notification of breaches – where data protection breaches lead to unauthorised loss, amendment or disclosure of data (such as in the examples given above), employers will be under a new obligation to notify the breach within 72 hours

Fines will increase from the current maximum of £500,000 to a new maximum of 20 million Euros, or 4% of an organisation’s worldwide turnover if higher.   To avoid hefty fines, employers should now conduct an audit of the personal data that they hold and the reasons for holding it, ensure that consent to processing data is recorded, review their policies and ensure that staff have been trained in data protection law.

National Minimum Wage

The Government is targeting employers who breach the National Minimum Wage.  It has allocated £1.7 million for an awareness-raising campaign aimed at individual workers, as well as a budget of £25.3 million for HMRC investigations and enforcement.  Employers who fall foul of the legislation face having to pay back pay and penalties of 200% of the back pay.  Employers are also “named and shamed” on a Government website.

It is becoming increasingly easy for workers to raise complaints without the expense of going to Employment Tribunal.  HMRC has confirmed that it follows up complaints made by workers via the free ACAS helpline.  Workers can also now use a free online form to report breaches of the National Minimum Wage.  HMRC uses this information to target employers, carrying out in-depth investigations and “naming and shaming” employers who are found to have breached the rules.  Often, it is the impact on an employer’s reputation – rather than the back-pay due – which is of greatest concern.

Whilst some employers are exploiting their workers, others may have made mistakes in genuinely attempting to comply with a complicated area of legislation.  However, mistake is no defence when it comes to naming and shaming.  Employers who are paying at or near the National Minimum Wage would be well advised to audit their processes and ensure that they are complying with this difficult area of law.

For further help or advice, please contact Lupton Fawcett Director, Louise Connacher, on 0113 280 2108 or louise.connacher@luptonfawcett.law