To help organisations close their gender pay gap, XpertHR has produced a guide on Using Positive Action to Help Close the Gender Pay Gap, which looks at when positive action is permitted in the context of sex discrimination.

According to Government figures[i] released earlier this year, a quarter of companies and public sector bodies have a pay gap of more than 20% in favour of men. The median pay gap this year was 11.9 per cent, compared to 11.8 per cent in 2018. There are still no sectors in the UK where women are paid the same as men[ii].

Certain trends are clear. Many organisations have significantly more men than women in their highest pay quartile. Pay gaps are particularly pronounced in certain industry sectors, such as construction, finance and insurance. The aviation sector also reports significant pay differentials, reflecting the fact that men tend to work in highly paid pilot and engineering roles, while women are typically employed in less well-paid cabin crew, retail and office-based positions.

The requirement to publish their gender pay gap means many organisations are now focusing on the need for a better balance between men and women in their better paid and more senior roles. But many don’t know what additional support they can offer women to help achieve this without potentially discriminating against men.

XpertHR’s guide can help as it clearly explains the rules around taking positive action – including the difference between positive action and positive discrimination – and how to develop a positive action plan.

The Equality Act 2010 allows general positive action if an employer reasonably thinks that women suffer a disadvantage connected to their sex; women have needs that are different from the needs of men; or participation by women in an activity is disproportionately low.

Where at least one of these conditions is met, the employer can take action that is a proportionate means of: enabling or encouraging women to overcome or minimise that disadvantage; meeting the different needs of women; or enabling or encouraging women to participate in that activity.

Positive action will typically involve measures to help women enter or progress into male dominated roles. Steps an employer could take include:

  • Targeted recruitment advertising in publications that are likely to be accessed by women.
  • Asking external recruitment specialists or internal managers to provide gender diverse candidate shortlists.
  • Providing training, mentoring or shadowing opportunities for women.
  • Holding women-only recruitment open days.
  • Setting up formal women’s networking programmes for sharing career advice.

Different rules apply to more favourable treatment taken in connection with recruitment or promotion. The Equality Act 2010 permits this where an employer reasonably thinks that women suffer a disadvantage connected to their sex, or participation by women in an activity is disproportionately low. This allows the employer to treat a woman more favourably than a man in connection with a recruitment or promotion decision because of their sex. However, stringent conditions must be met – the woman must be “as qualified” to be recruited or promoted as the man; the employer must not have a policy of treating women more favourably in connection with recruitment or promotion; and taking the action must be a proportionate means of achieving the relevant aim.

In essence, this provision allows employers to take sex into account in a recruitment or promotion decision, but only as a way of deciding between two candidates who are of equal merit.

XpertHR head of product content strategy Jo Stubbs says: “There are lots of factors behind the gender pay gap – including the low numbers of women choosing to study STEM subjects (science, technology, engineering and mathematics), which typically lead to well-paid jobs.

“But there are definitely ways that employers can help to remove any imbalance between the genders in their more senior and better paid roles. However, they need to understand what they can and can’t do. The provisions around recruitment and promotion are particularly tricky – if a well-intentioned employer appoints a female candidate over a better qualified male candidate, this will amount to direct sex discrimination.

“Our guide offers practical guidance for employers to help tackle their gender pay gap using positive action – and avoid falling into the potentially costly trap of discriminating against men.”

For further guidance see How to use positive action when taking steps to close the gender pay gap.

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