The Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017

Made: 9th March 2017

Coming into force: 31st March 2017

These Regulations are made in exercise of the powers conferred by sections 151(1), 153(1), 154(2) and 207(4) of the Equality Act 2010 .

The Secretary of State has consulted the Commission for Equality and Human Rights in accordance with sections 152(1), 153(4) and 154(4) of that Act; and the Welsh Ministers in accordance with section 152(1) and 154(3) of that Act so far as these Regulations relate to relevant Welsh authorities and cross-border Welsh authorities.

In accordance with section 151(8) of that Act, the Secretary of State considers that the extension of the application of section 149 relates to persons by whom a public function is exercisable.

In accordance with section 208(2) and (4), (5)(f) and (8) of that Act, a draft of this instrument was laid before Parliament and approved by a resolution of each House of Parliament.

The Secretary of State, in exercise of those powers, makes the following Regulations:

Citation, commencement and interpretation

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• (1) These Regulations may be cited as the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 and come into force on 31st March 2017.

• (2) In these Regulations—

• “the Act” means the Equality Act 2010;

• “the 1996 Act” means the Employment Rights Act 1996 ;

• “the 2011 Regulations” means the Equality Act 2010 (Specific Duties) Regulations 2011 ;

• “employment” and related expressions have the meaning given in regulation 2;

• “English local authority” has the same meaning as in section 162 of the Education and Inspections Act 2006 ;

• “maintained school” has the same meaning as in section 20(7) of the School Standards and Framework Act 1998 .

Meaning of “employment”

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• (1) In these Regulations, “employment” means—

• (a) employment under a contract of employment, a contract of apprenticeship or a contract personally to do work, and

• (b) Crown employment (within the meaning of section 191(3) of the 1996 Act ).

• (2) Section 191(4) of the 1996 Act applies for the purposes of these Regulations as it applies for the purposes set out in that subsection.

• (3) For the purposes of these Regulations, an employee of an English local authority at a maintained school is to be treated as an employee of the governing body of that school.

• (4) These Regulations apply to service in the armed forces as they apply to employment by, (or in the case of Crown employment, under or for the purposes of) a public authority, and for that purpose, references to terms of employment, or to a contract of employment, are to be read as including references to terms of service.

• (5) For the purposes of these Regulations, the holding, otherwise than under a contract of employment, of the office of constable, or of an appointment as a police cadet, is to be treated as employment by the relevant officer (and for that purpose, references to terms of employment, or to a contract of employment, are to be read as including references to terms of service).

• (6) In paragraph (4)—

• (a) “constable” does not include a special constable;

• (b) “police cadet” means a person appointed to undergo training with a view to becoming a constable;

• (c) “relevant officer” means—

• (i) in relation to a member of a police force or a police cadet appointed for a police area, the chief officer of police;

• (ii) in relation to any other person holding the office of constable or an appointment as a police cadet, the person who has the direction and control of the body of constables or cadets in question.

Gender pay gap reporting

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Schedule 1 to these Regulations (which imposes obligations on public authorities to publish gender pay gap information relating to employees) has effect.

Publication of information

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• (1) Each public authority listed in Schedule 2 to these Regulations must publish information to demonstrate its compliance with the duty imposed by section 149(1) of the Act.

• (2) The public authority must publish the information required by paragraph (1)—

• (a) not later than 30th March 2018; and

• (b) subsequently at intervals of not greater than one year beginning with the date of last publication.

• (3) The information a public authority publishes in compliance with paragraph (1) must include, in particular, information relating to persons who share a relevant protected characteristic who are—

• (a) its employees;

• (b) other persons affected by its policies and practices.

• (4) Paragraph (3)(a) does not apply to a public authority with fewer than 150 employees.

Equality objectives

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• (1) Each public authority listed in Schedule 2 to these Regulations must prepare and publish one or more objectives it thinks it should achieve to do any of the things mentioned in paragraphs (a) to (c) of section 149(1) of the Act.

• (2) The objectives must be published—

• (a) not later than 30th March 2018 (subject to regulation 9(2)); and

• (b) subsequently at intervals of not greater than four years beginning with the date of last publication.

• (3) An objective published by a public authority in compliance with paragraph (1) must be specific and measurable.

Manner of publication

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• (1) The requirements in regulations 4 and 5 to publish information are requirements to publish the information in a manner that is accessible to the public.

• (2) A public authority may comply with the requirements to publish information in regulation 4 or 5 by publishing the information within another published document.

Monitor and the NHS Trust Development Authority

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Amendment of Schedule 19 to the Act

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Schedule 3 to these Regulations (which amends Parts 1 and 2 of Schedule 19 to the Act) has effect.

Revocation, saving and transitional provision

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• (1) The 2011 Regulations are revoked (subject to paragraph (3)).

• (2) Where a public authority has, within the period of four years ending with 30th March 2018, published equality objectives in compliance with regulation 3(1) of the 2011 Regulations—

• (a) regulation 5(2)(a) does not apply; and

• (b) regulation 5(2)(b) is to be read as if—

• (i) the word “subsequently” were omitted, and

• (ii) the “date of last publication” referred to the date of last publication under regulation 3 of the 2011 Regulations.

• (3) Where—

• (a) immediately before the commencement date a public authority is required by regulation 2 of the 2011 Regulations to publish the information referred to in paragraph (1) of that regulation,

• (b) that information is required to be published on or before 6 April 2017, and

• (c) the information is not published before the commencement date in a form and manner that complies with regulations 2 and 4 of those Regulations,

regulations 2 and 4 are to continue to have effect on and after the commencement date in so far as they relate to the publication of that information by that authority.

SCHEDULE 1 — Gender pay gap reporting

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• (1) In this Schedule—

• “bonus pay” has the meaning given in paragraph 4;

• “full-pay relevant employee” means a relevant employee who is not, during the relevant pay period, being paid at a reduced rate or nil as a result of the employee being on leave;

• “hourly rate of pay” has the meaning given in paragraph 6;

• “ITEPA 2003” means the Income Tax (Earnings and Pensions) Act 2003 ;

• “leave” includes—annual leave;maternity, paternity, adoption, parental or shared parental leave;sick leave; andspecial leave;

• “ordinary pay” has the meaning given in paragraph 3;

• “pay period” has the meaning given in paragraph 5(1);

• “piecework” means work in respect of which an employee is entitled to be paid by reference to a number of pieces made or processed, or a number of tasks performed, instead of by reference to a period of time worked;

• “relevant employee” means a person who is employed by, (or in the case of Crown employment, under or for the purposes of) the relevant public authority on the snapshot date;

• “relevant pay period” has the meaning given in paragraph 5(2);

• “relevant public authority” means a public authority listed in Schedule 2 to these Regulations which has 250 or more employees on the snapshot date;

• “snapshot date” means the 31st March in the year to which the information required by paragraph 2 relates.

• (2) For the purposes of this Schedule, the amount of an employee's ordinary pay or bonus pay is to be calculated before deductions made at source (for example deductions in relation to income tax).

Duty to publish annual information relating to pay

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• (1) A relevant public authority must publish, for 2017 and each subsequent year, the following information—

• (a) the difference between the mean hourly rate of pay of male full-pay relevant employees and that of female full-pay relevant employees (see paragraph 8);

• (b) the difference between the median hourly rate of pay of male full-pay relevant employees and that of female full-pay relevant employees (see paragraph 9);

• (c) the difference between the mean bonus pay paid to male relevant employees and that paid to female relevant employees (see paragraph 10);

• (d) the difference between the median bonus pay paid to male relevant employees and that paid to female relevant employees (see paragraph 11);

• (e) the proportions of male and female relevant employees who were paid bonus pay (see paragraph 12); and

• (f) the proportions of male and female full-pay relevant employees in the lower, lower middle, upper middle and upper quartile pay bands (see paragraph 13).

• (2) The relevant public authority must publish the information required by sub-paragraph (1) within the period of 12 months beginning with the snapshot date.

• (3) In compiling the information required by sub-paragraph (1), a relevant public authority is not required to include data relating to a relevant employee if—

• (a) the employee is employed under a contract personally to do work, and

• (b) the public authority does not have, and it is not reasonably practicable for the public authority to obtain, the data.

Meaning of “ordinary pay”

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• (1) In this Schedule, “ordinary pay” means (subject to sub-paragraph (2))—

• (a) basic pay;

• (b) allowances;

• (c) pay for piecework;

• (d) pay for leave; and

• (e) shift premium pay.

• (2) “Ordinary pay” does not include—

• (a) remuneration referable to overtime;

• (b) remuneration referable to redundancy or termination of employment;

• (c) remuneration in lieu of leave; or

• (d) remuneration provided otherwise than in money.

• (3) In sub-paragraph (1)—

• (a) “allowances” includes any sum paid with respect to—

• (i) any duty of the employee, such as a duty in connection with the role of fire or bomb warden, that is ancillary to the main duties of the employee's employment;

• (ii) the location of the employment in a particular area;

• (iii) the purchase, lease or maintenance of a vehicle;

• (iv) the recruitment and retention of an employee; or

• (v) the purchase, lease or maintenance of an item;

but excludes any payment to reimburse expenditure wholly and necessarily incurred by the employee in the course of his or her employment;

• (b) “shift premium pay” means the difference between basic pay and any higher rate paid by the public authority for work during different times of the day or night.

Meaning of “bonus pay”

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• (1) In this Schedule, “bonus pay” means (subject to sub-paragraph (2)) any remuneration that—

• (a) is in the form of money, vouchers, securities, securities options or interests in securities, and

• (b) relates to profit sharing, productivity, performance, incentive or commission.

• (2) “Bonus pay” does not include—

• (a) ordinary pay;

• (b) remuneration referable to overtime; or

• (c) remuneration referable to redundancy or termination of employment.

• (3) For the purpose of sub-paragraph (1), remuneration in the form of securities, securities options and interests in securities, is to be treated as paid to the employee at the time, and in the amounts in respect of which, the securities, securities options and interests in securities give rise to (or would give rise to, if the employee were an employee for the purposes of Part 2 of ITEPA 2003 (employment income))—

• (a) any taxable earnings within the meaning of section 10(2) of ITEPA 2003 ; or

• (b) any taxable specific income within the meaning of section 10(3) of ITEPA 2003 .

• (4) In this paragraph “securities”, “securities options” and “interests in securities” have the same meaning as in section 420 of ITEPA 2003 .

Meaning of the “pay period” and the “relevant pay period”

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• (1) In this Schedule, “pay period”, in relation to a relevant employee, means—

• (a) the period in respect of which the relevant public authority pays the employee basic pay, whether weekly, fortnightly, monthly or any other period, or

• (b) if the relevant public authority does not pay the employee basic pay, the period in respect of which the public authority most frequently pays the employee one of the elements of ordinary pay mentioned in paragraph 3(1)(b) to (e).

• (2) In this Schedule, the “relevant pay period” means the pay period within which the snapshot date falls.

Meaning of “hourly rate of pay”

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• (1) The “hourly rate of pay” in relation to a relevant employee, is to be determined as follows—

• Step 1

• Identify all amounts of ordinary pay and bonus pay paid to the employee during the relevant pay period.

• Step 2

• Where an amount identified under Step 1 is an amount of ordinary pay, exclude any amount that would normally fall to be paid in a different pay period.

• Step 3

• Where an amount identified under Step 1 is an amount of bonus pay, and is paid in respect of a period (“the bonus period”) which is not the same length as the relevant pay period, divide the amount by the length of the bonus period (in days) and multiply it by the length of the relevant pay period (in days).

• Step 4

• Add together the amounts identified under Step 1 (as adjusted, where necessary, under Steps 2 and 3).

• Step 5

• Multiply the amount found under Step 4 by the appropriate multiplier (see sub-paragraphs (2) and (3)).

• Step 6

• Divide the amount found under Step 5 by the number of working hours in a week for that employee (see paragraph 7).

• (2) In this paragraph, “the appropriate multiplier” means 7 divided by the number of days in the relevant pay period.

• (3) In determining for the purposes of this paragraph the number of days in the relevant pay period or bonus period where those periods are (or are determined by reference to) a month or a year—

• (a) a month is treated as having 30.44 days;

• (b) a year is treated as having 365.25 days.

Employee's working hours in a week

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• (1) The number of working hours in a week for a relevant employee, for the purposes of Step 6 in paragraph 6, is to be determined as follows.

• (2) Subject to sub-paragraph (6), where an employee has normal working hours that do not differ from week to week or over a longer period, the number of working hours in a week for a relevant employee is the number of the normal working hours in a week for that employee under the employee's contract of employment, or terms of employment, in force on the snapshot date.

• (3) Subject to sub-paragraph (6), where the employee has no normal working hours, or the number of the normal working hours differs from week to week or over a longer period, the number of working hours in a week for the employee is—

• (a) the average number of working hours calculated by dividing by twelve the total number of the employee's working hours during the period of twelve weeks ending with the last complete week of the relevant pay period, or

• (b) where the employee has not been at work for a sufficient period, or for some other reason the public authority is not reasonably able to make the calculation under paragraph (a), a number which fairly represents the number of working hours in a week having regard to such of the considerations specified in sub-paragraph (5) as are appropriate in the circumstances.

• (4) In calculating the average number of working hours for the purposes of sub-paragraph (3)(a), no account is to be taken of a week in which no hours were worked by the employee, and hours worked in earlier weeks must be brought in so as to bring up to twelve the number of weeks of which account is taken.

• (5) The considerations referred to in sub-paragraph (3)(b) are—

• (a) the average number of working hours in a week which the employee could expect under the employee's contract of employment, or terms of employment; and

• (b) the average number of working hours of other employees engaged in comparable employment with the same public authority.

• (6) Where the employee is paid on the basis of piecework, the number of working hours in a week for the employee is the number of hours of output work for that employee in the week during the relevant pay period within which the snapshot date falls, determined in accordance with Chapter 4 of Part 5 of the National Minimum Wage Regulations 2015 .