Top 10 FAQs – Gender Pay Gap Reporting

by Ailbhe Dennehy,  Employment Partner at  Matheson

1. Where do I find my obligations under the Irish Gender Pay Gap (“GPG”) reporting regime?

As of July 2022, the Irish GPG reporting regime comprises:

• the foundations set by the Gender Pay Gap Information Act 2021Opens in new window (“Act“);
• the details of the Employment Equality Act 1998 (Section 20a) (Gender Pay Gap Information) Regulations 2022Opens in new window (the “Regulations“); and
• the official but not binding Government Guidance NoteOpens in new window and FAQsOpens in new window.

2. Which employers are required to report?

• Employers with a headcount of 250+ employees must report on their GPG by December 2022.
• This threshold will decrease twice, with those employers with 150+ employees needing to begin reporting by December 2024 and those with 50+ employees needing to do so by December 2025.
• The number of employees employed for the purposes of the GPG will be assessed as and from a “snapshot” date in June 2022.

3. Which employees are included?

• All employees employed on the June “snapshot date” are included (full time, part time, fixed term, or specific purpose).
• In terms of employees working overseas, if the employee is an employee of the Irish entity, and if they are on the Irish entity payroll, then they would be considered in the headcount.
• Employees on leave will generally be included as well as employees who are employed by the employer but not rostered on the snapshot date.
• Independent contractors / consultants may need to be included in certain circumstances and tailored advice should be taken in respect of these.

4. Which employees are excluded?

• Any individuals with an employment contract with an entity other than the employer, notwithstanding that they may perform work for the employer.
• Agency employees are excluded from the headcount as long as the agency employee is paid directly by the agency rather than the end user – which would be the normal model.
• Employees on a career break for over 12 months on the “snapshot date” are excluded from the headcount also.

5. When is the report due?

• The first step for in scope employers is to choose that “snapshot date” in June 2022.
• The reporting deadline is six months after the snapshot date, in December 2022. Consequently, the reporting date will be the same date in December 2022 as the snapshot date.
• The reporting period is the 12 month period immediately preceding and including the snapshot date.
• By way of an example, if a company chooses 30 June 2022 as its snapshot date, its reporting deadline will be 30 December 2022 and its reporting period is 1 July 2021 to 30 June 2022.
• Even where the headcount falls below the relevant threshold after the snapshot date, the employer is still obliged to produce the report in December 2022.

6. What must be reported?

In summary, employers with reporting obligations will be required to report the following seven key pieces of GPG data on an annual basis:

• Mean and median hourly remuneration for all employees (a percentage figure);
• Mean and median hourly remuneration for part-time and temporary employees (a percentage figure);
• Mean and median bonus remuneration percentage of all employees (a percentage figure);
• Proportion of male and female employees that received bonus remuneration (a percentage figure);
• Proportion of male and female employees that received benefits-in-kind (a percentage figure); and
• Proportion of male and female employees in four equally divided quarters (i.e. expressed as each of the employer’s lower, lower middle, upper middle and upper quartile pay bands).
• Employer’s statement explaining its GPG reporting and the measures it is taking to address its GPG (captured as a written explanation).

The core calculation at the centre of this regime is the hourly rate of pay and the comparison in the hourly rate of pay for men compared to women during the relevant pay period. The Regulations provide that, in order to identify the hourly rate of pay, an employer must take a given employee’s ordinary pay, add in any bonus paid during the relevant pay period and then divide that number by the number of hours worked by the employee in the relevant pay period. The Regulations include complex and highly technical instructions for what elements of “ordinary pay” may be excluded and what bonus pay should be adjusted.

7. How will this be reported?

The Regulations make it clear that employers must publish their GPG report on their website and that it must be accessible to all employees and members of the public. Where an employer does not have a website, their GPG report must be made available in physical form, for inspection during normal business hours, by its employees and the public, at the company’s registered office or principal place of business.

The Government plans to develop an online reporting system which will consist of a central portal where all employer reports will be uploaded and be accessible publicly, indicating that this central reporting system will be established in 2023, aligning with the next reporting date.

8. How long must the report be available?

The data must be maintained on the Company’s website for up to three years. This time requirement increases visibility on what way the pattern is going and whether or not the employer is actually improving or dis-improving, hence creating an onus on employers to strive to minimise the pay gap within their organisation.

9. Are there any sanctions for non-compliance?

The Act itself does not currently provide financial penalties for non-compliance or compensation to employees for any breach.

However, employees can bring claims against their employers to the Workplace Relations Commission (“WRC“) for failure to comply with their obligations under the Act. The WRC may then order an employer to take a specified course of action to comply with the Act, with all decisions being published, including the names of the employer and employee. This in itself creates reputational and organisational risks for employers.

Separately, the Act empowers the Irish Human Rights and Equality Commission to bring an application to the Circuit Court or the High Court to compel an employer to comply with its obligations under the Act.

10. What are some key differences between the Irish and UK GPG  reporting regimes?

There are a number of key differences between both regimes. For example:

• There are more extensive disclosure requirements for Irish employers (e.g. the inclusion of part-timers and temporary workers, and the obligation to report the percentage of employees receiving benefits-in-kind, the causes of the gender pay gap and the actions being taken to address that gap).
• Benefits in kind must be reported on in Ireland but not the UK.
• Separate reporting on temporary and part-time employees is required in Ireland but not the UK.
• Irish employers must analyse 12 months of pay data, rather than just one month of pay data as appears to often be the case in the UK.
• Irish employers must include a supporting narrative in their GPG report but this is not a requirement in the UK.

As a result, employers who have taken action in respect of their GPG calculations by mirroring the UK legislation and methodology should now consider looking again at their workings to reflect relevant differences between the UK and Irish legislation.

About the author

Ailbhe joined Matheson with extensive experience in providing strategic and practical advice on corporate transactions and restructurings, regularly acting for clients before the WRC, the Labour Court and the civil courts.

A frequent lecturer on current employment law issues and contributor to employment law publications, she is a member of the Employment Law Association of Ireland (ELAI), the Employment Committee of the Dublin Solicitor Bar Association (DSBA), the European Employment Lawyer’s Association (EELA) and the UK Employment Lawyers Association (ELA).

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