12/10/2023

ROI MEMBER NEWSLETTER

JUNE & JULY 2023

1. The Pay Transparency Directive

On 6^th June 2023, the EU Pay Transparency Directive came into force, meaning that EU member states will have 3 years, until 7 June 2026, to transpose it’s the Directives provisions into their national laws.

The purpose of the Directive is to combat pay discrimination and help close the gender pay gap in the European Union.

Whilst the Directive introduces various measures to combat pay discrimination, the primary focus of the legislation is Gender Gap Reporting.

Under the new rules, EU Member companies will be required to share information on salaries and take information on salaries and act if their gender pay gap exceeds 5%.

The Directive also includes provisions on compensation for victims of pay discrimination and penalties, including fines, for employers who break the rules.

Members will be aware that in ROI, Gender Pay Gap reporting was introduced in May 2022 by the Gender Pay Gap Act 2021. ‘In scope’ employers, being those employers who employ more than 250 employees, completed their first reporting return in [insert] 2022.

The Employment Equality Act 1998 (section 20A) (Gender Pay Gap Information) Regulations 2022 set out the detail how a company’s gender pay gap calculations are to be presented.

The requirements of the Directive however will require the Irish Government to introduction additional measures by 2026 to demonstrate compliance. (See below)

The Pay Transparency Directive and Gender Pay Gap reporting: What will employers have to report?

The Directive will require member states to establish gender pay gap reporting regimes that will require employers to report:

• Mean and median pay gaps.
• Mean and median gaps calculated from “complementary and variable” components of pay (e.g. bonuses).
• The proportion of men and women receiving complementary or variable components of pay.
• The proportion of men and women within each quartile pay band.

The Directive will however also require the reporting of pay gaps by “categories of workers”, covering basic salary and complementary/variable pay.

“Categories” of workers are defined as “workers performing the same work or work of equal value”.

Defining workers in this way will undoubtedly be a complex task but it is clear that the intention of the Directive is to get a more reflective assessment of the pay gap between those completing same or similar roles, akin to the comparison in equal pay claims. It is hoped that guidance will be provided to member states to assist employers with this comparative process.

Employers will have to respond to requests for additional clarifications and information after publishing their gender pay gap and must do so within a reasonable time period.

Employers will be compelled to remedy any gender pay gap where the difference cannot be justified by objective and non-gender-based factors.

The Directive also requires the commission of a ‘joint pay assessment’ when:

• pay reporting reveals a gender pay gap of at least 5% in any category of workers and;
• where the employer cannot justify the gap based objective gender-neutral factors and;
• the unjustified difference has not been rectified within six months.

A joint pay assessment requires the employer to co-operate with worker representatives to analyse: the pay differences; the reasons behind them and; the effectiveness of measures to address the differences. The employer must also remedy the differences within a “reasonable” period of time.

Who will have to report?

• Employers with 250 or more workers must report their gender pay gaps every year;
• Employers with 150-249 workers will have to report every three years.

The threshold will be lowered to employers with 100-149 workers in 2030.

When does reporting begin?

The first reports will be published in 2027 and will relate to the 2026 calendar year.

Smaller employers (those with 100-150) will have to report gender pay gaps every three years beginning with reports published in 2031 relating to the 2030 calendar year.

The Pay Transparency Directive v The Gender Pay Gap Reporting Act (2021)

The Irish legislation, which came into effect in May 2022 already complies with the basic pay reporting requirements in the Directive and goes beyond these requirements in some respects.

Currently in Ireland, only employers with 250 or more employees have to publish gender pay gap reports – but by 2025, this threshold will drop to just 50 employees. The Irish Regulations will therefore comply with the Directive’s ultimate threshold of 100 employees before the latter takes effect.

In summary, in scope employers are required to publish:

1. The difference between the mean and median hourly pay of male and female employees;
2. The difference between the mean and median bonus pay of male and female employees;
3. The difference between the mean and median hourly pay of part-time and temporary male and female employees;
4. The percentage of male and female employees who received bonuses and benefits in kind; and
5. The percentage of male and female employees in each of four quartile pay bands.

One significant difference, which should go some way further towards identifying pay inequality, is that the Directive will require the publication of pay gaps by “categories of worker”. Currently, employers in Ireland must publish pay gaps calculated for its entire workforce, and then separate calculations for part time and temporary (fixed-term) employee groups. However, the rules do not require publication by job functions or grades of worker, rather than simply their employment status. As discussed above, the Directive will require reporting based on those carrying out the same work or work of equal value. This will be a more onerous task.

Whilst the Irish Regulations do require organisations, as part of their reporting obligations, to provide a written statement explaining the reasons for any pay gaps, and to set out measures (if any) being taken, or being proposed to be taken, to eliminate or reduce any differences in pay, the Directive goes further by imposing a positive obligation on employers to take action where such pay differences cannot be justified by objective and gender-neutral means.

Other provisions of the Pay Transparency Directive

The Directive contains other significant measures with the aim of helping eradicating pay disparity between men and women and achieving equal pay though the disclosure of information before and during employment.

Information for job applicants

Employers will have to disclose the initial pay level or range for the position in job advertisements or before conducting interviews. Employers will also be prohibited from asking job candidates about their pay history, including their existing salary.

Employees Right to request pay information / no ban on pay disclosures. 

Workers will have the right to request information from their employer on their individual pay level and on the average pay levels, broken down by gender, for categories of workers doing the same work or work of equal value. This right will exist for all workers, irrespective of the size of the company. This is directly aimed at one of the major obstacles to enforcing equal pay between men and women: the lack of knowledge about what others doing comparable jobs are paid.

Workers should not be prevented from disclosing their pay to others for the purpose of enforcing the principle of equal pay, and contractual terms to this effect must be prohibited.

Conclusion

The EU Pay Transparency Directive is a landmark piece of legislation which will undoubtedly transform the playing field in relation to pay equality for men and women across the EU.  Whilst Ireland can already demonstrate compliance with certain aspects of the Directive, there is still much work to be done to ensure compliance by 2026 and we anticipate it will be some time before we see draft domestic legislation in this area.

A copy of the Pay Transparency Directive is available here 

2. Update on Work Life Balance and Miscellaneous Provisions Act 2023

We have been updating members on an ongoing basis regarding the implementation of the Work Lift Balance Act as it made its way through the legislative process. Members will be aware from our previous newsletter that the Act was signed into law in April 2023 but that implementation dates were awaited in respect of the various new rights under the legislation.

With little prior notification, the government recently confirmed that from 3^rd July 2023 the right to leave for medical care purposes will be introduced.  The  leave, which is a day 1 right,  will entitled employees up to 5 days unpaid leave (in any period of 12 consecutive months) for medical care purposes to provide personal care or support to certain specified persons, including: a child, spouse/civil partner, cohabitant, parent or grandparent, brother or sister or a person who resides in the same household as the employee, where any of those persons is in need of significant care or support for a serious medical reason.

Maternity Protection Acts

Changes to the Maternity Protection Act 1994 will also come into effect on 3 July 2023. By way of reminder, these changes will see:

• an increase in the number of weeks from 26 to 104 weeks during which mothers are entitled to take paid time off work and have reduced working hours for breastfeeding purposes. This change will also lead to an extension of the period during which health and safety leave may need to be considered for a breastfeeding employee.
• Transgender men who have given birth can access maternity leave.

We await further details regarding commencement dates for the remaining changes under the Act. The introduction of flexible working will not take place until the Code of Practice on considering such requests has been produced by the WRC (see below).

3. WRC PUBLIC CONSULTATION ON A CODE OF PRACTICE ON THE ‘‘RIGHT TO REQUEST REMOTE WORKING’’

The Workplace Relations Commission’s consultation on a Code of Practice on the ‘Right to Request Remote Working’ closed on 9^th June 2023. We had previously invited Members to submit any suggestions or representations to us in respect of the draft Code of Practice so that they could be included in our submission.

Employers Federation submission, in summary, set out the following:

Remote working/flexible working

It is beneficial to both employers and employees that the same process for handling requests for both flexible working arrangements and remote working.

The process for handling request should be simple and straightforward so that both employees and employers understand their obligations in relation to the requests. An employer should consider the application within the time periods specified by the legislation.

Where the employer can agree to the employee’s request, this should be communicated to the employee confirming the start date/end date (if applicable) and any conditions in relation to the request.

Unless there is genuine uncertainty as to the specific nature of the employee’s request, employers should be compelled to meet with an employee in circumstances where (1) they can approve the request or (2) it is obvious that the request would give rise to any of the situations identified below and that no mitigations would overcome these concerns.

Relevant factors when considering whether to grant or reject a flexible working/remote working

The grounds for refusing a request for either flexible working (which may include an element of home working) and remote working should be the same/similar. (See below).

The grounds set out in section 13(E) should also be considered as reasonable grounds for refusing the original request, but should also include:

• the burden of additional costs.
• an inability to reorganise work amongst existing staff.
• an inability to recruit additional staff.
• a detrimental impact on quality.
• a detrimental impact on performance.
• a detrimental effect on ability to meet customer demand.
• insufficient work for the periods the employee proposes to work.
• a planned structural change to your business.
• detrimental impact on staff morale or engagement (remote working)

We do not believe such a right of appeal should be set out in any Code of Practice.

Remote working overseas

Employers are concerned, particularly given experiences during the pandemic, that remote working may give rise to an influx of employees working abroad or outside of the Republic of Ireland for prolonged periods of their employment.

This presents complex issues relating to taxation, data protection, immigration law and employment rights relating to the country the employee is working remotely from.

Employers need specific guidance on navigating these issues and how they are compatible with an employee’s ability to request remote working.

4. WORK PLACE RELATIONS COMMISSION DEVELOPMENTS

1: List of frequently cited authorities in WRC Jurisprudence

As part of the WRC’s mandate to provide information to the public and facilitate effective access to justice in relevant employment and equality matters, the WRC has prepared a list of the case authorities from other tribunals and courts which are most frequently cited before the WRC. The list was generated by a specially designed AI-based search of over 10,000 WRC decisions to establish the 150 most commonly cited decisions from other courts and tribunals. Whilst certain cases may not feature in the list, this may be because they were only cited a handful of times and the aim of this project was to reflect the most statistically significant cases to ensure greater access to information. This may change over time.

Please note that all of the WRC’s decisions are available on the WRC’s website database and is not included in the list.

https://www.workplacerelations.ie/wrc/en/complaints_disputes/adjudication/frequently-cited-authorities/list-of-frequently-cited-authorities-in-wrc-jurisprudence.html

2: Table of remedies which WRC Adjudication Officers have jurisdiction to provide.

The WRC has also produced a helpful summary of the remedies available to the adjudication officer when considering complaints. The table will need further update once the various rights under the Work Life Balance and Miscellaneous Provisions Act 2023 are commenced.

WRC Remedies Table – Workplace Relations Commission

3: WRC Employment and Equality Rights Information

Along with short animated video series translated into a number of popular service user languages, the WRC website contains a suite of rights information guides which are regularly updated – see here for further information including sample 5-day terms etc which reflect the Transparent and Predictable Working Conditions Regulations 2022 Terms of Employment – Workplace Relations Commission, and information on the new tips legislation Tips and Gratuities – Workplace Relations Commission.

The videos may be helpful to members who have not attended a hearing previously and may help to reduce any apprehension in advance of a hearing.

WRC Videos – Workplace Relations Commission

CASE LAW UPDATE

1. Darren Kiernan v Joseph Brennan Bakeries ADJ-00039331

Unfair Dismissal

Facts

The Complainant was employed by the Respondent as a General Operative for approximately 20 years until his dismissal for gross misconduct on 15^th December 2021.

The Complainant was dismissed after he was observed smoking in his work van rather than in the designated smoking hut. The Complainant’s van was parked in close proximity, some 20 yards away, from a diesel tank, 50 yards from boiler house and 75 yards from flour silos all considered to be highly flammable substances.

The Respondent became aware of the Complainant’s smoking after a routine check of the CCTV footage covering the premises.

The Respondent met with the Complainant to discuss the incident, during which time the Complainant was shown the CCTV footage. The Complainant admitted that he was smoking in his van. The Complainant was subsequently suspended from work on full pay. This meeting was not viewed as a formal investigation meeting and the complainant was accompanied by a fellow colleague rather than being offered trade union representation.

The Complainant subsequently attended formal investigatory meetings on 19^th and 23^rd July 2021 when he was represented by Ms. Duffy King, SIPTU official.  During the meetings the Complainant said he had permission from Mr. Trevor Glavin, who was in charge of the site, to smoke in his van.  The investigatory manager then met with Mr. Glavin who confirmed that on one occasion, a year earlier, he had given the Complainant permission to smoke in his van which, at the time, was right beside the designated smoking shed. The reason proffered by Mr Glavin for granting the Complainant permission on that occasion was due to concerns the Complainant had regarding Covid 19 and a vulnerable relative.

A disciplinary hearing took place on 5^th November 2021. In this hearing the Complainant stated that there was a second instance where Mr. Glavin had given him permission to smoke in his van. This was denied by Mr. Glavin. Following the hearing, the disciplinary manager decided to dismiss the Complainant due to the severity of the incident, namely the fact that there was a diesel tank approximately 20 yards from where the Complainant was observed smoking. The disciplinary manager concluded that the Complainant had not been granted permission on more than one occasion.

On appeal, Mr Yarr, Operations Director, determined that dismissal had been a proportionate sanction having regard to an independent risk assessment which confirmed that there was a serious risk of fire, explosion or death if there was an ignition source at the wrong place.

The disciplinary manager gave evidence at the WRC hearing.  He was also cross-examined on why he preferred Mr. Glavin’s evidence over the Complainant’s. He stated he found it was consistent whereas the Complainant’s story changed throughout the process. He considered the sanction of dismissal appropriate in all the circumstances.

At the WRC hearing the Complainant accepted that he had been smoking in his van, which was a breach of the rules, notwithstanding he had permission on a previous occasion. The Complainant alleged that dismissal was a wholly disproportionate response, having regard to his length of service and also the lack of governance or advice on how to handle smoking in the workplace during the pandemic.

The Respondent disagreed and highlighted its responsibility to abide by the health and safety regulations relating to the processing of flour and other combustible materials. The Respondent referred to the decision in Employee v Employer UD679/2009 where the workplace in question had a number of flammable materials and maintaining a strictly enforced designated smoking area was a term of the employer’s insurance.

Decision

The Adjudication Officer (AO), Mr David Murphy, found that the Complainant had been unfairly dismissed by the Respondent.

Whilst the AO stated that dismissal may have been reasonable response, having regard to the principles endorsed in the case of Bank of Ireland v Reilly, taking into account the combustible materials close by and the respondent’s approach to similar breaches in the past. However, rather strangely the AO found that the Respondent did not follow fair procedures on the basis that the Complainant was not given notice of what the meeting on 14^th July 2021 was about and that he was only offered to bring a colleague rather than a representative.

Despite the fact that the meeting on 14^th July 2021 was not a disciplinary hearing, the AO found that the Complainant should have been informed in advance of that there was a risk that he could have been dismissed when the CCTV footage. The AO held that the rules of natural justice required him to have the right to be represented at that hearing and to be made aware of the potential consequences. Unfortunately, the decision provided no explanation as how the showing of this footage resulted in the meeting no longer being considered an investigatory meeting but rather a disciplinary hearing, which attaches a right to fair procedures.

Furthermore, the AO found that the investigation should not have been completed by Mr Whelan after it came to light that Mr Glavin (Mr Whelan’s superior) had previously given the Complainant permission to smoke in his van. The AO stated that as Mr Whelan reported to Mr Glavin, he was unlikely to make a finding against him and that he had previously permitted a serious derogation from company policy.

The Complainant was awarded €15,000, which included a 50% reduction due to the complainant’s contributory fault as well as his failure to mitigate against his loss.

Takeaway for Employers

Whilst this decision is a helpful reminder of when dismissal can fall within the band of reasonableness/reasonable responses, it is stark reminder to employers that internal procedures will be scrutinised  at all stages of the internal process, not just the disciplinary hearing and that the the right to representation and fair procedures apply at any stage if there is the process could potentially result in dismissal.

2. A support worker v Education Service ADJ-00034525

 Disability discrimination – less favourable treatment relating to the Respondent’s sick pay scheme, failure to make reasonable accommodations arising out of a workplace relocation.

Facts

 The Complainant was employed as an education support worker with the education service based in the Blessington branch.

The complainant has a number of medical conditions, including Addison’s disease. As a result of her Addison’s disease the complainant needed to be close to a hospital as an Addisonian crisis can create a life-threatening risk.

In and around February 2020 the Respondent announced that it was to close its Blessington branch. The Complainant was given 3 options for relocation namely: Naas, Carlow and Tallaght. The Complainant was invited, on several occasions, to confirm her preference for relocation. In November 2021, some 9 months into the process, the Complainant finally stated that her preference to be Naas.

Unfortunately given the Complainant’s delay in making a decision, her preferred choice was no longer available, and she was informed that she was to re-locate to Carlow.

In an email to HR on 16^th February 2021 the Complainant stated:

‘Dear,

Would you please inform me on what basis the decision was made to move me to the Carlow office when this is not the option I chose as it did not suit either my personal or professional situation. As you know, I live in Wicklow and my case load is in Wicklow and your decision to move me to another county will place unreasonable pressure on me’

There was no specific reference to the Complainant’s medical conditions or her need to be located close to a hospital in that email, or any other email to the Respondent, regarding the relocation.

The Complainant subsequently resigned from her employment, embarking on a period of early retirement.

The Complainant alleged that the Respondent had failed to make reasonable accommodations by failing to properly engage with her regarding the workplace relocation, having regard to her specific needs arising from her conditions.

The Complainant also alleged that she was treated less favourably in respect of the Respondent’s sick pay scheme as compared to non-disabled employees or those with a disability different to hers.

The Respondent denied both allegations stating that the complaint was correctly paid, full pay, during any periods of absence and that the decision to relocate the Complainant to the Carlow branch was because of the Complainant’s failure to indicate her preferred new work location after a lengthy 9-month process. The Respondent also stated that at no stage during the internal process (lasting 16 months in total) did the Complainant inform them that she required to be near to a hospital as a result of disability. The Respondent reiterated that the only time when the Complainant outlined her preference was in November 2020, despite being repeatedly asked, at which point she stated that she wished to move Naas. However, she also said she was agreeable to move to Carlow under strict conditions.  The Respondent confirmed that at no point was it informed that the Complainant wanted to be reasonably accommodated because of her disability or that this impacted on the new work location decision making process.

An issue also arose during the hearing as to whether this aspect of the Complainant’s complaint was pleaded. Following an adjournment by the AO, and submissions by the Respondent, the AO determined, taking into account the relevant legislation, that it was.

Decision

 The AO found that the Respondent had failed to satisfy its obligations in respect of reasonable accommodations for the Complainant by failing to consult her about her personal circumstances. As such, this aspect of her complaint was upheld, and she was awarded €35,000.

The AO stated that the Employer knew that the Complainant had a disability given the facts of the case, such as lengthy email discussion regarding critical illness cover. This it found should have ‘beckoned the employer to look and enquire further’ to understand the circumstances regarding her unwillingness to move to certain sites. This was despite not having previously said that the reason for not wanting to go to Carlow was because she needed to be near to a hospital. The AO stated that this did not necessarily mean that the Carlow Office was unsuitable, however what it did require the Respondent to assess where the Complainant could have been reasonably accommodated so she could have accessed, participated and advanced in her employment.

 The AO did not find any evidence that the Complainant had been treated less favourably than non-disabled persons in respect if the operation of the sick pay policy. The AO was satisfied that the Complainant was paid in accordance with the scheme and that any delay in making payments was short in duration and could be explained.

 Learning for Employers

This decision, viewed by many as harsh, as it places a very high burden on the employer to effectively probe further and make enquiries where it is on notice that the employee has a disability and has ‘alluded’, even in very general terms, to that disability.

Where the employer is on notice that the employee has an underlying medical condition which amounts to, or could amount to, a disability then the employer must ensure that it makes enquiries to fully understand the impact where the employee has indicated that they may be adversely affected by any decision. In these circumstances the employer’s obligation to make reasonable accommodations is engaged.

Given the level of compensation in this case, an appeal to the Labour Court would not be unexpected.