Gender Pay Gap Reporting Regulations Published

Almost one year after the enactment of the Gender Pay Gap (Information) Act 2021 (“Act”) in July 2021, the Government recently published the Employment Equality Act (1998 (Section 20A) (Gender Pay Gap Information) Regulations 2022 (“Regulations”), which gives effect to the Act and provides further details on the manner and timing of gender pay gap reporting obligations.

We have previously outlined the Act’s key provisions which can be accessed here.

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What is a Gender Pay Gap?

A gender pay gap is not the same as a failure to pay equal pay for like work. Employers are already obligated to pay equal pay to both genders for like work. A gender pay gap refers to the difference in the average hourly wage of men and women across a workforce. The Act requires employers to publish the gender pay gap differentials in their organisations, setting out pay differences between female and male employees.

We have set out below the specific gender pay gap information that must be reported by in scope employers. Employers must publish this information on their website or make it available in physical form for a period of three years in a manner that is accessible to all employees and the public. This report must include a written statement in which the employer explains the reasons for any gender pay differences and the measures (if any) being taken, or proposed to the taken, by the employer to eliminate or reduce such differences.

Timeline for Triggering Reporting Obligations:

By way of brief refresher, the Act requires employers with the following employee thresholds to report gender pay gap information in the next three years:

  • 250 employees in 2022;
  • 150 employees in 2024; and
  • 50 employees in 2025.
Our previous discussion on gender pay gap reporting obligations and the timing of such obligations is available here.

Key dates for employers with at least 250 employees:

Employers with at least 250 employees will be required to choose a date (known as a “snapshot date”) in June 2022 for the purpose of reporting. These in-scope employers will then be required to publish their gender pay gap report six months after the chosen “snapshot date” (i.e. if the “snapshot date” is 10 June 2022, the reporting date will be 10 December 2022).

The Regulations largely repeat the obligations contained in the Act. However, they also provide detailed metrics which employers are to base their gender pay gap reporting on including definitions of “bonus”, “allowance”, “hourly remuneration”, “ordinary pay” and “working hours” and how to calculate gender pay gap information using these definitions.

Information that must be Published:

The Regulations expand on the information to be published relating to mean hourly remuneration which includes the following:

  • the difference between the mean hourly remuneration of male and female employees expressed as a percentage of the mean hourly remuneration of relevant male employees;
  • the difference between the mean hourly remuneration of part-time male and female employees expressed as a percentage of the mean hourly remuneration of relevant part-time male employees; and
  • the difference between the mean hourly remuneration of relevant male and female employees on temporary contracts expressed as a percentage of the mean hourly remuneration of relevant male employees on temporary contracts”.
The Regulations confirm that in scope employers must publish their gender pay gap report no later than six months after the relevant date (the date in June selected by the employer).

Further guidance and examples of how to calculate gender pay gap information are contained in the Regulations, which are available here.

Consequences for Non-Compliance with the Act:

Under the Act, employees may refer a complaint to the Workplace Relations Commission (“WRC”) alleging that their employer has failed to comply with their obligations under the Act. The WRC will investigate the complaint. If it finds the complaint well-founded, the WRC may order the employer to take a specified course of action. However, employees who make complaints under the Act do not have a right of compensation and there is no provision for monetary fines to be imposed on employers.

Separately, the Act empowers the Irish Human Rights and Equality Commission (“IHREC”) to apply to the Circuit Court or High Court for an order directing an employer to comply with its obligations under the Act. The IHREC must have reasonable grounds for believing that an employer is not complying with its obligations under the Act before it may make such an application.

Despite the limited legal consequences for non-compliance, there are reputational and organisational risks for employers as outlined below.

Next Steps

Although the Regulations only apply to larger Irish employers, all Irish employers should be aware of the spotlight this throws on their gender diversity and inclusion practices. Employers who have assessed their gender pay gap and steps that might be required to bridge it may have an advantage over their competitors at a time when the market pressures on recruitment and retention has never been tougher. Carrying out trial gender pay gap reviews with the benefit of legal professional privilege is recommended in order to identify and assess any issues that might exist in order to take appropriate steps to deal with it.

Sustainable gender diversity requires employers to take a holistic approach. Preferential treatment should only be used where it is necessary and proportionate and having first carried out a gender-neutral objective assessment of the facts. Clear, transparent policies and procedures, generous family-friendly leave entitlements for all genders, flexible working time arrangements, mindful performance management and career progression all play their part. Training and mentoring programmes for staff at all levels that emphasises equality of opportunity and the benefits of gender balance on leadership teams may also be helpful.

Most employers will have a gender pay gap; understanding why a gender pay gap exists and being able to demonstrate the measures envisaged to address and reduce any gender pay gap are likely to have a positive impact on recruitment, retention and workplace culture.