New legislative proposals will, if implemented, introduce gender pay gap reporting for larger employers in both the public and private sectors in Ireland.
By: Siobhra Rush and Declan Groarke
Firm: Lewis Silkin LLP
The measures contained in the Gender Pay Gap Information Bill 2019 (the ‘Bill’), published on 4 April, show that the Irish Government is taking gender pay gap (‘GPG’) reporting seriously. The Bill proposes to introduce various mechanisms, available to different groups of interested parties, designed to ensure that companies and government bodies comply with their GPG reporting obligations.
Under the Bill, employers in both the private and public sector will be obliged to report on their GPG and publish information relating to it. Initially, the Bill will apply only to organisations with 250 employees or more, with the threshold eventually reducing to 50 employees or more over a three-year period. The Bill will not apply to at all to employers with fewer than 50 employees.
The GPG information proposed to be published under the Bill includes:
- the mean and median gap in hourly pay between men and women;
- the mean and median gap in bonus pay between men and women;
- the mean and median gap in hourly pay of part-time male and female employees;
- the percentage of men and of women who received bonus pay;
- the percentage of men and of women who received benefits in kind.
Alongside the above information, the Bill proposes obliging employers to publish a statement setting out the reasons for any pay gap reported and the measures, if any, they are taking to eliminate or reduce the gap.
The Minister for Justice and Equality (the ‘Minister’) will have power under the Bill to make regulations prescribing the form, manner and frequency with which GPG information is to be reported and published, so it is accessible by both employees and the public. To ensure compliance with data protection legislation, the Bill provides that the Minister may prescribe measures to be taken by employers to ensure personal data is pseudonymised before information is released.
The Bill also provides for the Minister to appoint designated officers to investigate suspected breaches of GPG reporting obligations. Such officers will have power to peaceably enter the premises of any employer under investigation and obtain information, which enables them to exercise their functions.
Designated officers will be permitted to request any person to produce or provide access to any records, books, documents or other things that they believe contain material information, and take copies. If it appears to the officer that any person has failed to comply with such a request, he or she may apply to the Circuit Court (‘CC’) for an order requiring that person to produce the item in question or furnish any information sought. Only in limited circumstances where legal privilege applies will a person not be obliged to comply with such a request, and failure to comply with a CC order will be considered a contempt of court.
Role of the Commissions
The Bill will enable the Irish Human Rights and Equality Commission (‘IHREC’) to apply to the CC for an order requiring an employer to comply with its GPG reporting obligations, where the IHREC reasonably believes it has failed to do so. The Minister can also request the IHREC to carry out equality reviews and the drawing-up of equality action plans.
In addition, the Bill enables employees to complain to the Workplace Relations Commission, seeking an order obliging their employer take a ‘specified course of action’ to ensure compliance with its GPG reporting obligations. This is the only remedy available and there is no monetary compensation for pursuing such a complaint, so this course of action will most likely be pursued only by particular interested parties.
Private Members Bill
Parallel and separate to the Bill is a Private Members Bill, the Irish Human Rights and Equality Commission (Gender Pay Gap) Information Bill 2017. Although the latter is currently at a more advanced stage within the Irish legislature, it will probably now fall away with debate focusing on the Government’s Bill. There are, however, some notable provisions in the Private Members Bill that do not appear in the Government’s Bill, including:
- immediate GPG reporting obligations for employers with more than 50 employees;
- the IHREC having responsibility for prescribing the form, manner and frequency of reporting GPG information reporting (as opposed to the Minister);
- potential criminal liability for a breach of GPG reporting obligations;
- ability to publish the names of companies with over 100 employees that have failed to comply with their GPG reporting obligations.
The above measures are likely to form significant topics for debate as the Bill progresses through the Irish legislature.
The implementation timetable for GPG reporting in Ireland remains unclear, but the parliamentary debates will be of major interest to employers and employees alike as the Bill’s provisions are amended, added to or removed. It would be advisable for affected employers to begin taking steps to establish their GPG data, especially those who have been unaffected by GPG reporting obligations in the UK and have no experience of this issue.