- At Kemp Little, we are known for our ability to serve the very particular needs of a large but diverse technology client base. Our hands-on industry know-how makes us a good fit with many of the world's biggest technology and digital media businesses, yet means we are equally relevant to companies with a technology bias, in sectors such as professional services, financial services, retail, travel and healthcare.
- Kemp Little specialises in the technology and digital media sectors and provides a range of legal services that are crucial to fast-moving, innovative businesses.Our blend of sector awareness, technical excellence and responsiveness, means we are regularly ranked as a leading firm by directories such as Legal 500, Chambers and PLC Which Lawyer. Our practice areas cover a wide range of legal issues and advice.
- Our Commercial Technology team has established itself as one of the strongest in the UK. We are ranked in Legal 500, Chambers & Partners and PLC Which Lawyer, with four of our partners recommended.
- Our team provides practical and commercial advice founded on years of experience and technical know-how to technology and digital media companies that need to be alert to the rules and regulations of competition law.
- Our Corporate Practice has a reputation for delivering sound legal advice, backed up with extensive industry experience and credentials, to get the best results from technology and digital media transactions.
- In the fast-changing world of employment law our clients need practical, commercial and cost-effective advice. They get this from our team of employment law professionals.
- Our team of leading IP advisors deliver cost-effective, strategic and commercial advice to ensure that your IP assets are protected and leveraged to add real value to your business.
- Our litigation practice advises on all aspects of dispute resolution, with a particular focus on ownership, exploitation and infringement of intellectual property rights and commercial disputes in the technology sector.
- We have an industry-leading reputation for our outsourcing expertise. Our professionals deliver credible legal advice to providers and acquirers of IT and business process outsourcing (BPO) services.
- We work alongside companies, many with disruptive technologies, that seek funding, as well as with the venture capital firms, institutional investors and corporate ventures that want to invest in exciting business opportunities.
- Our regulatory specialists work alongside Kemp Littles corporate and commercial professionals to help meet their compliance obligations.
- With a service that is commercial and responsive to our clients needs, you will find our tax advice easy to understand, cost-effective and geared towards maximising your tax benefits.
- At Kemp Little, we advise clients in diverse sectors where technology is fundamental to the ongoing success of their businesses.They include companies that provide technology as a service and businesses where the use of technology is key to their business model, enabling them to bring their product or service to market.
- We bring our commercial understanding of digital business models, our legal expertise and our reputation for delivering high quality, cost-effective services to this dynamic sector.
- Acting for market leaders and market changers within the media industry, we combine in-depth knowledge of the structural technology that underpins content delivery and the impact of digitisation on the rights of producers and consumers.
- We understand the risks facing this sector and work with our clients to conquer those challenges. Testimony to our success is the continued growth in our team of professionals and the clients we serve.
- We advise at the forefront of the technological intersection between life sciences and healthcare. We advise leading technology and data analytics providers, healthcare institutions as well as manufacturers of medical devices, pharmaceuticals and biotechnological products.
- For clients operating in the online sector, our teams are structured to meet their commercial, financing, M&A, competition and regulatory, employment and intellectual property legal needs.
- Our focus on technology makes us especially well positioned to give advice on the legal aspects of digital marketing. We advise on high-profile, multi-channel, cross-border cases and on highly complex campaigns.
- The mobile and telecoms sector is fast changing and hugely dependent on technology advances. We help mobile and wireless and fixed telecoms clients to tackle the legal challenges that this evolving sector presents.
- Whether ERP, Linux or Windows; software or infrastructure as a service in the cloud, in a virtualised environment, or as a mobile or service-oriented architecture, we have the experience to resolve legal issues across the spectrum of commercial computer platforms.
- Our clients trust us to apply our solutions and know-how to help them make the best use of technology in structuring deals, mitigating key risks to their businesses and in achieving their commercial objectives.
- We have extensive experience of advising customers and suppliers in the retail sector on technology development, licensing and supply projects, and in advising on all aspects of procurement and online operations.
- Our years of working alongside diverse software clients have given us an in-depth understanding of the dynamics of the software marketplace, market practice and alternative negotiating strategies.
- Working with direct providers of travel services, including aggregators, facilitators and suppliers of transport and technology, our team has developed a unique specialist knowledge of the sector
- Your life as an entrepreneur is full of daily challenges as you seek to grow your business. One of the key strengths of our firm is that we understand these challenges.
- Kemp Little is trusted by some of the worlds leading luxury brands and some of the most innovative e-commerce retailers changing the face of the industry.
- HR Bytes is an exclusive, comprehensive, online service that will provide you with a wide range of practical, insightful and current employment law information. HR Bytes members get priority booking for events, key insight and a range of employment materials for free.
- FlightDeck is our portal designed especially with start-up and emerging technology businesses in mind to help you get your business up and running in the right way. We provide a free pack of all the things no-one tells you and things they dont give away to get you started.
Playing catch up - gender pay gap reporting
Amy Douthwaite & Marian Bloodworth consider the implications of the gender pay gap reporting rules.
- Calculating the threshold number of employees and working out who is in scope is not as simple as it might first appear.
- The internal and external implications of gender pay gap reporting should not be underestimated.
The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (the Regulations) came into force on 6 April 2017, requiring larger employers to produce an annual report on their gender pay gap.
The first report must be published by 4 April 2018 on data as at the snapshot date of 5 April 2017 and annually thereafter. There are many legal and practical issues for employers to consider.
The basic obligation
Employers with 250 or more employees as at 5 April must report the following metrics:
- the difference in mean hourly pay of male and female employees;
- the difference in median hourly pay of male and female employees;
- the difference in mean bonus pay for the previous 12 months of male and female employees;
- the difference in median bonus pay in the previous 12 months of male and female employees;
- the proportions of male and female employees paid a bonus in the previous 12 months; and
- the number of male and female employees in each quartile.
The Regulations set out detailed instructions on how to carry out the calculations for each of the metrics. While the basic obligation appears simple enough, there are a number of challenging areas within the Regulations as they are not as clear as they could be.
Who counts for the 250 threshold?
The first question is whether the employer is caught by the 250 employee threshold. While the Regulations themselves do not define ‘employee’, the Explanatory Notes provide that ‘employment’ has the meaning set out in s 83 of the Equality Act 2010. Therefore, employers should include in their threshold calculations any person employed under a contract of employment, a contract of apprenticeship, or a contract personally to do work.
Depending on the organisation’s structure and engagement methods, this could prove more complex than employers anticipate, including in relation to partners, overseas employees, non-executive directors, consultants and casual workers.
In terms of the inclusion of partners, the Regulations include a definition of ‘relevant employee’ to determine who should be reported on, which expressly excludes partners and LLP members, meaning they will not have to be reported on. However, they are not expressly excluded for the purposes of calculating the ‘employee’ numbers for the threshold. Therefore, if a partner falls within the definition of ‘employment’ within the Equality Act 2010 they should be included in the threshold calculation.
In terms of overseas employees, the ACAS guidance (Guidance) suggests that generally when an employer based in Great Britain has an employee based overseas, that employee will be classed as an ‘employee’ for the Regulations if they would be able to bring a claim in the employment tribunal under the Equality Act 2010. This will involve an analysis of the tests in Lawson v Serco  IRLR 289 and Ravat Halliburton  IRLR 315. Equally there is no clarity as to how overseas secondees to the UK, or UK employees of businesses with overseas headquarters should be treated.
Who should be reported on?
Not every person included for the 250 employee threshold purposes will need to be included in the report, for example, partners (as outlined above).
In addition, the Regulations provide that if the employer does not have the data relating to an employee working under a contract personally to do work (such as a consultant) and it is not reasonably practicable to obtain the data, then it does not have to be included.
However, employers should be wary about relying on this exclusion, as in many cases this data will be relatively easy for the employer to obtain, for instance by asking the consultant or budget holder within the business for the data. In addition, while this might provide a plausible reason to not include the data in the first report, this is likely to be less acceptable for future years as the Guidance specifically states that employers should try to ensure that they have access to the relevant data.
Getting the data right
Employers need to ensure that they have access to and can obtain all of the required data. This may not be entirely straightforward for some employers, for instance if they operate multiple payrolls, have different payment mechanisms, or keep payment information in different locations.
They should also consider whether the method of extracting or compiling the data actually creates potentially problematic documents. For instance, if it is easiest to compile the data according to business area, this may highlight a particular issue with the gender pay gap or even equal pay issues within that business area. This then may put the onus on the employer to tackle that issue. It would also be helpful information for an employee bringing a claim within that business area. Therefore, it is not just the final report that may create legal risk, but also documents created as part of the process.
Risk of getting it wrong
Employers should obviously be trying to ensure that the data reported is correct and in compliance with the Regulations. However, given the perceived lack of teeth which the Regulations have in terms of enforcement, some employers may take the view that where there are grey areas or the obligations are unclear, a proportionate approach would be to adopt a logical and consistent methodology and accept the risk that it could be incomplete or not entirely in compliance.
The content of the report & sign-off
Once employers are comfortable with their data, the next question will be how the data should be presented. It is anticipated that most employers will have a gender pay gap. Employers therefore should carefully consider putting some context around the data. There are a number of messages that the employer may want to consider, for instance:
- Does a feature of the calculations skew the data in some way? For instance is annual bonus paid in the ‘relevant period’ and therefore double counted to a certain extent by being included in ‘hourly pay’ and bonus metrics? This will involve a careful analysis of the calculations and the data in order to determine whether this is the case and why.
- Are there senior (and otherwise well paid) individuals who were not ‘relevant full pay employees’ at the snapshot date (because they were on leave) and so were not reported on?
- Is the pay gap common to the sector as a whole? How do the employer’s metrics compare to others in the sector?
- Has the employer taken any steps already to reduce the gender pay gap? Has it introduced any initiatives to promote women within the organisation to get to the higher paying roles, has it introduced any recruitment initiatives which may help address the gender pay gap?
- What steps is the employer going to take to reduce the gender pay gap further?
- Is the employer involved in any sector initiatives to help encourage women into the sector or develop those already working in the sector?
While it is anticipated that employers will have a gender pay gap in the first year and for a number of years to come, there will be an expectation that the gap will narrow each year, particularly where the employer has identified steps it is taking or will take to improve the gap within the narrative of the report. Therefore, employers should carefully consider what they are prepared to commit to in the report given the risk of further negative attention if steps are promised and then not followed through.
“It is anticipated that most employers will have a gender pay gap”
The report has to be signed-off by a senior person within the organisation (a director for companies). The person, or team responsible for ensuring compliance with the Regulations should therefore consider early on who this is likely to be and their preferred approach to the obligations. Some will want to adopt a minimal ‘compliance only’ approach, whereas others will want to use the obligations as an opportunity to push forward the diversity agenda at the organisation.
Publishing the report - when & where
Once the report has been drafted the employer should consider tactics for publishing the report. When to publish the report is a key question as this could significantly affect how much external attention the report receives. Employers may decide to delay publishing until close to the deadline in the hope that their report will be one of many published at that point. Alternatively, employers may consider other strategic publishing times, for instance at a time when there are other high profile news issues.
The report has to be submitted to a designated government website and also published in a manner accessible to all its employees and the public on the employer’s website. Therefore, there is some leeway in where to publish it and it does not necessarily have to be displayed on the employer’s landing page on their website.
Most employers will have given careful thought to how the report will be perceived externally and the external communications accompanying it. However, how the report is perceived by the employer’s own staff will be important as the report could raise a lot of questions, and may spark pay grievances or even claims for sex discrimination or equal pay. Therefore, the scope, content and timing of internal communications should not be overlooked. Clarifying the distinction between equal pay and gender pay issues will be particularly important, including making clear that data showing a gender pay gap does not necessarily show an ‘equal pay’ issue.
How might the data be used?
In addition to the data potentially sparking grievances and claims regarding pay, inevitably any employee or former employee bringing a sex discrimination claim will seek to use the gender pay gap data as evidence of ingrained discrimination within an organisation. The only way to mitigate this risk will be to publish carefully worded narrative with the data, and to refer to a clear commitment to address it going forward.
Any other data that is generated while preparing the report could become disclosable in employment tribunal claims if it is relevant to the particular claim. Therefore, employers should be careful when producing and commenting on the data internally. Involving legal advisers in order to protect the data and analysis with privilege should therefore be considered.
While the obligations for employers to produce the gender pay gap report seems, on the face of it, straightforward and clear, the internal and external implications should not be underestimated. Employers should therefore be thinking ahead and planning their approach to their obligations under the regulations as they may be able to mitigate some of the risks associated with their obligations and be better prepared to deal with any risks that materialise.
This article first appeared in New Law Journal www.newlawjournal.co.uk