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The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (“the Regulations”) are creating enough of a headache for employers without stating the obvious.
Unhelpfully, the Regulations do not define the terms ‘male’ and ‘female’, let alone explain how transgender employees should be recorded. Whilst Equal Opportunities forms are sometimes available for completion by prospective employees at the outset of employment, this is not always the case and, even if this happens, the forms are not always actually completed. Many employers simply don’t hold information relating to employees’ gender. So what happens when there is uncertainty or a lack of information about gender identity?
The ACAS guidance on gender pay reporting contains helpful guidance on gender identity. It states that, as a starting point, most employers should be able to base reports on the gender identification the employee has provided for HR/payroll, if such records are regularly updated. Where this information is not available or may be unreliable, employers should establish a method which enables all employees to confirm or update their gender.
Employers could use communications with employees about the gender pay gap reporting exercise to invite all employees to update their records about their gender identification where they wish to do so, but they should not directly question employees on their gender. In cases where the employee does not self-identify as either gender, an employer may omit the individual from the gender pay gap calculations.
Employers may decide that it would be reasonable to follow the same approach where they do not know how an employee self-identifies their gender. In doing this employers could include a tick box option for “male”, “female” and “prefer not to say”. Where such omissions are likely to skew the results then an explanation should be included in an accompanying narrative. Caution should be taken here not to identify any specific individuals in the narrative in any way.
Employers should not force employees to disclose their gender and employees should not be singled out and questioned about their gender. This is particularly important where an employee has not yet “come out” about their gender identity. It could amount to harassment to force a person to disclose their gender identity. What is more, it is an offence under the Gender Recognition Act 2004 to disclose information about a person’s gender reassignment application to any other person without consent.