To be prepared for this new legislation, eligible employers need to start analysing their data and planning accordingly. Aoife Newton tells us what needs to be done before 2022.

Gender pay gap reporting legislation was recently signed into law in the Gender Pay Gap Information Act 2021 (the Act). However, when and how the information will need to be reported is as yet unknown. In this regard, the regulations to give effect to the Act are eagerly awaited.

The Act amends the Employment Equality Act 1998 by requiring regulations to be made by the Minister for Children, Equality, Disability, Integration and Youth as soon as reasonably practicable after the commencement of the legislation. The regulations will place reporting and publication obligations on private and public sector employers regarding their gender pay gap. They will contain much of the detail on the practicalities of the legislation.

Which employers are affected?

The legislation will not apply to all employers. Only employers that satisfy certain employee thresholds will be in the scope of the legislation. Where an applicable employer reports that a gender pay gap exists, the employer will be required to explain why the gender pay gap exists and detail the measures being implemented by the employer to reduce or eliminate the gap.

Both private and public employers will be affected by the mandatory reporting obligations, but they will initially only apply to employers with 250 or more employees for up to two years after the commencement of the regulations. The scope of the mandatory reporting obligations will widen further to include employers with 150 or more employees on or after the second anniversary of the regulations and those with 50 or more employees on or after the third anniversary.

Employers with less than 50 employees will not be required to report on their gender pay gap.

What is required?

Applicable employers will be required to report on the difference in remuneration between male and female employees, as set out below:

• the difference between both the mean and median hourly pay of male and female employees;
• the difference between both the mean and median bonus pay of male and female employees;
• the difference between both the mean and median hourly pay of part-time male and female employees; and
• the percentage of male and female employees who received bonuses and benefits-in-kind.

Employers will also be required to simultaneously publish the reasons for differences in pay in the context of the above and the measures being taken or proposed to eliminate or reduce such disparities.

In addition to the mandatory reporting requirements, other requirements may be contained in the regulations once published, including:

• the class of employer, employee and pay to which the regulations apply;
• how the number of employees and remuneration is to be calculated; and
• the form, manner and frequency with which information is to be published.

The information will not be required to be published more than once per year.

Enforcement

An aggrieved employee can make a complaint to the Workplace Relations Commission (WRC) if an employer is not reporting on its gender pay gap. On receipt of a complaint, the WRC will investigate the complaint’s merits and may order the employer to take a specified course of action to ensure compliance with its reporting obligations. However, the WRC does not have the jurisdiction to order the employer to pay compensation to an employee or impose a fine on an employer.

The Act provides for the Irish Human Rights and Equality Commission (IHREC) to apply to the Circuit Court or High Court seeking an order forcing an employer to comply with its reporting obligations. Employers that do not comply with such a court order may be held in contempt of court.

The Act also provides that the IHREC, on receipt of a request from the Minister, can carry out (or invite a particular undertaking, group of undertakings, or the undertakings making up a particular industry or sector to carry out) an equality review or create and action an equality action plan.

What to do now

Minister Roderic O’Gorman has confirmed his intention to have the regulations in force by the end of 2021. He has also indicated that employers may be required to submit their information through a central website.

Given that the regulations will likely be in force by the end of 2021, the legislation will probably apply to applicable employers from some date in 2022. Employers can prepare by collating and analysing their remuneration data to assess the extent to which gender pay gaps exist. This will help plan how to remove or reduce any such gaps before they are publicly obliged to report, the reasons for them, and what they are going to do about them.

Aoife Newton is the Head of the Corporate Immigration and Employment Law team at KPMG.