Gender Pay Gap Information Act 2021
The purpose of Gender Pay Gap Information Act 2021 Act is to require regulations to be made that will oblige certain employers to publish information relating to the gender pay gap among their employees and, where there is a gap, the measures (if any) being taken to eliminate or reduce it.
The Act provides that the Minister for Justice and Equality shall make regulations requiring employers to publish gender pay gap information for their employees. In making regulations, the Minister shall have regard to the estimated costs of complying with, and enforcing, the regulations.
Accordingly, the Minister shall, as soon as is reasonably practicable after commencement, make regulations requiring the publication of gender pay gap information. The information is specified:
- 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.
The Act requires the publication of the reasons, in the employer’s opinion, for any gaps and of the measures (if any) that the employer is taking or proposes to take to eliminate or reduce gaps.
It provides for a phased introduction of the requirements on certain employers to report, namely, that regulations shall not apply to employers with fewer than 50 employees; that they shall not apply to employers with fewer than 250 employees before the second anniversary of the making of the first regulations; nor to employers with fewer than 150 employees before the third anniversary.
The regulations may prescribe any, or any combination of
- the classes of employer to which the regulations apply (whether by reference to the number of employees that an employer has or otherwise)
- the classes of employee to which the regulations apply
- the classes of remuneration to which the regulations apply
- how the number of employees that an employer has is to be calculated
- how the remuneration or classes of remuneration of employees are to be calculated.
The regulations may prescribe the form and manner in which, and the frequency (which shall not be more frequent than once in each year) with which, information is to be published in order to bring such information to the attention of the employees to whom the information relates and the public. For example, the regulations might require the employer to send the information to the employees in addition to publishing it on a website.
The Act provides for publication of gender pay gap information by each Government Department, Scheduled Offices, An Garda Síochána, and the Defence Forces. It provides for the situation in which the employer does not have access to pay information on employees. In that case, the regulations may require the person who has such access to give the information, or access to the information, to the employer so that the latter can comply with the regulations. An example of this situation is teachers who are employed by a school board but are paid by the Department of Education and Skills.
The regulations may prescribe measures to be taken by the employer or the person who has access to information (in the situation envisaged above) to ensure that personal data have undergone pseudonymisation before or when they are released. ‘pseudonymisation’ has the meaning assigned to it by Article 4 of the GDPR:
“ ‘pseudonymisation’ means the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person”.
The regulations may require
- publication of the mean and median gap in hourly pay between male and female employees on temporary contracts.
- publication of the percentage of each pay quartile who are men and who are women. For example, what percentage of the most highly (hourly) paid 25% of employees are men/women?
- the publication of information by reference to job classifications. For example, what is the gender pay gap among senior managers, among other managers, among professionals, among technicians etc
These are matters which may be required by regulations, in contrast to the matters set out at above which must be required by the regulations.
The power to make regulations, as provided for in the Act, needs to be accompanied by a provision setting out the principles and policies to which the Minister must have regard in exercising this power.
These provisions state the Minister shall have regard to the principle that employees and the public need to have access to any information which shows whether there are differences relating to the remuneration of employees by reference to the gender of such employees and, if there are such differences, the reasons for the differences and the measures being taken, or proposed to be taken, to eliminate or reduce the differences.
There are three new sections in the Employment Equality Act 1998:
- (enforcement powers in respect of gender pay gap information),
- (application to Circuit Court in case of failure to comply with regulations), and
- (redress through the Workplace Relations Commission).
The Minister appoints designated officers to investigate how employers prepare the information required to be published to ensure its accuracy. Provisions already in the Employment Equality Act on powers to enter premises, obtain information, and require persons to provide information and associated sanctions are applied to this situation.
The Irish Human Rights and Equality Commission (IHREC) to apply to the Circuit Court for an order requiring a person to comply with the regulations. A person who fails to comply with a Circuit Court order is in contempt of that Court.
The Minister may request IHREC to consider exercising its powers for carrying out equality reviews and the drawing up of equality action plans. It will be for IHREC to decide whether to exercise its section 32 powers following the Minister’s request.
The Minister shall review the Act before the fifth anniversary of commencement.
An employee may make a complaint to the Workplace Relations Commission (WRC) of non-compliance with reporting regulations by their employer. The Director General of the WRC will investigate the complaint if satisfied that there is a prima facie case. If, on investigation, the Director General or an adjudication officer finds in favour of the complainant, he or she may make an order requiring the employer to take a specified course of action in order to comply. This is the only remedy that may be ordered. For example, compensation may not be awarded as it is not an appropriate remedy in this situation. Enforcement of WRC orders is through the District