[MAY2018] Why only Gender?

When discussing pay gap in our society, most of us already have an idea of the disparity. However, the full extent of the issue has not been previously understood and so the gender audit was positively necessary. The general expectation is that the pressure from the media, employees and the public will force the companies to address the issue and demonstrate their attitude towards equality.

The current focus is on gender inequality today however, most of us will also agree that pay gap does not only exist in gender and inequality exists amongst other comparative groups such as ethnicity and disability. If employers are to promote diversity, surely statistics on other groups should also be reported. Where today, it has been possible to collate this kind of data from employers, the idea of increasing their duties does not seem like a difficult request.

When we talk about equality, Section 4 of the Equality Act[1] should have only been a starting point. The 9 listed protected characteristics have historically faced discrimination, but the act does not prioritise a single characteristic above another. In fact, characteristics such as social class or political beliefs are not listed yet they are an identifiable characteristic easily subjected to discrimination.

So, should the pay gap audits stop at gender? Most definitely not. Most people identify themselves with more than one characteristics and by knowing how pay is distributed in a company, people can make informed decisions. People like myself, an aspiring solicitor will make my applications based on the firm’s commitment to equality. If there is very little movement in promotion for certain disadvantaged characteristic, or if there are deeper occupational segregation within an industry, people starting their career would want to know.

As we excruciatingly slowly move towards greater transparency in pay, it would seem that the next potential focus point for tackling pay gaps is race and ethnicity. Omar Khan expresses in The Guardian that ‘race equality needs to be prioritised’[2] as there is a clear under-representation of ethnic minorities in higher roles. The Ethnicity Pay Gap Bill[3] presented in 2016 followed a similar structure to the current gender pay gap regulations. An ethnic pay audit is very much welcomed however the Bill did not progress.

Theoretically speaking, the data is as easy collect and calculate as any other personal data. Instead of the two variables compared in gender, the variables would increase to compare all ethnic backgrounds. Mark Crail in his article ‘Ethnicity pay gap reporting: how would it work?’ , argues that in practice, the calculations would be a ‘mathematical nightmare’[4]. The responding suggestion to group together ethnic minorities (into Asian, Black, White, Mixed and Other) to highlight ethnic inequality is a meaningless and controversial endeavour given the different levels of disadvantage each ethnicity have faced.

Perhaps a similar application could display the problem with collating data on disadvantages as a result of a disability.  Would it be a practical nightmare to have more than one comparative category? A better understanding of the tools required would be useful in this assessment.

An overlooked legal issue with the position held to audit pay gap information on all areas, is that Gender is not a sensitive information under the Data Protection Act[5]. Race, Religion and Disability information of a person are some of the characteristics which are sensitive information for the purposes of the Act[6]. Interestingly with changes being made this year as a result of GDPR[7], data collection regulations will provide a person with greater control of how their data is being used. Given the long term benefit of these audits, most employees will be encouraged to provide consent.

It is undisputable that gender pay gap report has attracted attention and fuelled the nation to speak about the injustice. This opportunity should be available to everyone and it will not be possible until an employer’s obligation to report is widened to include other protected characteristics. There are many firms talking about their commitment to diversity in employment as it is appealing to a modern society. It will be interesting to see the truth in numbers.


[1] Equality Act 2010, s 4.

[2] Omar Khan, ‘Employers admit there’s a gender pay gap. What about race?’ The Guardian (London, 4 March 2018) < https://www.theguardian.com/commentisfree/2018/mar/04/employers-gender-pay-gap-race-ethnic-minority > accessed 18 March 2018.

[3] Ethnicity Pay Gap Bill [HL], Bill 35, 2016-2017.

[4] Rob Moss, ‘Ethnicity pay gap reporting: how would it work?’ Personnel Today (London, 26 May 2017) < https://www.personneltoday.com/hr/ethnicity-pay-gap-reporting-work/&gt; accessed 18 March 2018.

[5] Data Protection Act 1998

[6] Data Protection Act 1998, s2.

[7] Regulation (EC) No 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 04.05.2016, p.1).

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