Bridge that gap! Gender pay gap information reporting

Introduction

On the 3^{rd of} June last, the long-awaited Regulations under the Gender Pay Gap (Information) Act 2021 (“the Act”), setting out the information required to be published by employers on the gender pay gap, were published by the Minister for Children, Equality, Disability, Integration and Youth, Roderic O’Gorman. The Employment Equality Act 1998 (Section 20A) (Gender Pay Gap Information) Regulations 2022 (“the Regulations”) came into operation on 31 May 2022.

Essentially, organisations with over 250 employees are required to report on their gender pay gap for the first time in 2022. The obligation to report for organisations with more than 150 employees will arise in 2024 and for organisations with more than 50 employees in 2025.

In this Insight, we will examine the Regulations to provide some practical guidance for employers on how to meet their new legal obligations and what exactly must be reported on, and when it must be reported, under the Regulations. The reality is that the calculations required under the Regulations are complex and detailed and most employers will need the assistance of their accountants/auditors to analyse the data and complete the calculations. However, organisations cannot focus solely on the calculations. Remember that the calculations may disclose a gender pay gap and then the organisation must set out reasons for the gap.

Where RDJ can assist is of course in relation to the interpretation of the Act and the Regulations, but even more importantly, we can provide assistance in drafting reasoning for any gender pay gap that is exposed following the completion of the calculations and drafting wording around actions being taken to reduce any gender pay gap. We are looking forward to working with our clients over the coming months in this regard. It is important for organisations to keep in mind that their gender pay gap reporting is accessible to the public and so the wording in all communications is vitally important from a brand and reputation perspective.

Background

The Act requires organisations to report on their hourly gender pay gap across a range of metrics. The Regulations set out more detail on how to calculate the gender pay gap. Both the Act and the Regulations must be read together and the Government has published helpful guidance on gender pay gap reporting and all of this information can be found here.

As outlined above, the number of employees in your organisation will determine when you are required to report on the gender pay gap in your organisation:

• +250 employees: 2022
• +150 employees: 2024
• +50 employees: 2025

Employers must publish this information no more than once a year. Gender pay gap should not be confused with equal pay. The gender pay gap is about gender representation and is the difference on average across a population between men’s and women’s pay. The gender pay gap is usually represented as the average difference in gross hourly earnings of men and of women, expressed as a percentage of men's average gross hourly earnings. A gender pay gap which is positive indicates that, on average across the employed population, women are in a less favourable position than men. Where the gender pay gap is negative, this indicates the reverse - that, on average, men are in a less favourable position than women.

Equal pay for equal work or work of equal value, on the other hand, is required under the Employment Equality Acts. Even if an employer has an effective equal pay policy, it could still have a gender pay gap if, for example, the majority of women are employed in lower-paid jobs.

Many organisations will retain external third parties to assist them with preparing their gender pay gap calculations and reports. The UK is somewhat ahead of Ireland on this as their Regulations came into force in April 2017. For those organisations with entitles in the UK, their experience is certainly helpful but there are some key differences between the UK and Irish Regulations and organisations therefore need to be careful to ensure that they are fully complying with the requirements set out in the Regulations.

The Reporting Requirement

As outlined above, organisations with over 250 employees are required to report on their gender pay gap in 2022 by reference to their employees on a snapshot date in June 2022. Employers can choose their June snapshot date, and whatever date is chosen will determine their reporting deadline, which is exactly 6 months after the June date. So, for example, if the employer choose 20^th June as the snapshot date, their gender pay gap report must be published no later than 20^th December, 2022.

Calculating Employee Numbers

Organisations must carry out a headcount of all persons employed by them on the June snapshot date, including employees not rostered to work on that date and employees on leave. Anyone who has a contract of employment (full time, part time, fixed term, or specific purpose) at the snapshot date with the organisation is included as an employee for the purposes of the Act. This will include interns if they have a contract of employment. Agency workers are generally not counted as their contract of employment will be with the Agency, as opposed to with the organisation.

There is no service requirement – any employee who has a contract of employment at the June snapshot date, regardless of when their employment commenced, is included for the purposes of calculating the total number of employees at that date.

Any joiners or leavers after the June snapshot date are irrelevant once the June snapshot date calculation of the number of employees has been completed.

In the updated guidance note recently published for employers, which can be found here employees on career break for over 12 months on the snapshot date are excluded for the purposes of calculating the organisations headcount on the snapshot date.

Once you have calculated your employee number as at the snapshot date, and if that number exceeds 250 employees, you then have an obligation to carry out your gender pay gap analysis and reporting, and so you move on to collecting the data needed to allow you to do this.

The Relevant Pay Period

In collecting your data, you need to consider for what period the data is required. This is the 12 month period immediately preceding and including the snapshot date – so if you choose the 20^th June as your snapshot date, your relevant pay period is 21^st June 2021 to the 20^th June 2022. So the data required, outlined in more detail below, is required to be analysed over a 12 month period. As outlined above, your reporting date will be the 20^th December, 2022.

Data Required

Obviously, gender will be a key piece of data required for this reporting. Also, gender pay gap for part-time and employees on temporary contracts needs to be reported separately so contractual status as at the snapshot date will also be required.

For each relevant employee, you will need to calculate their total ordinary pay, which includes;

• the normal salary paid to the employee;
• allowances (includes payments for additional duties; related to location; for the purchase, lease or maintenance of a vehicle or other item; and, for the recruitment or retention of an employee);
• any overtime payments;
• pay for piecework (will not apply to a lot of employers but is essentially pay based on productivity);
• shift premium pay;
• pay for sick leave;
• any salary top-ups for statutory leaves like maternity leave/paternity leave/parent’s leave;
• pay for gardening leave.

Certain payments are to be excluded such as redundancy payments and reimbursement payments for such things as travel and subsistence are excluded.

Also, calculate their total bonus which should include all bonuses awarded to an employee for the relevant pay period. This would include bonus payments in the form of money, vouchers, securities, securities options, or interests in securities, or, which relate to profit sharing, productivity, performance, incentive, or commission. Bonus pay does not include any ordinary pay, overtime pay, or redundancy or termination of employment payments. The whole area of how to allow for securities/shares is very unclear at the moment and clarification is being sought from Government around how to include them in the calculations.

All pay elements are looked at as the gross amounts before the deduction of any taxes.

Then, calculate their total hours worked – there are four different methods of calculating total hours worked depending on the individual circumstances of the employee and these methods are set out in detail in the updated guidance note, linked above. Essentially, employers can use one of the following;

1. The recorded hours.
2. The contractual hours.
3. Average hours per week where the employee does not have set hours.
4. Where employees are paid on a piece work basis – take the number of hours worked by the employee on a piece work basis in the relevant pay period.

Organisations must then work out the hourly remuneration and again this is detailed in the updated guidance note. This is essentially calculated by dividing the pay as outlined above by the total number of hours worked in the reporting period.

Employers also need to report on the proportions of males and females who received benefits-in-kind over the relevant pay period (the Regulations set out that benefit in kind includes any non-cash benefit of monetary value provided to an employee which would include the provision of a company car, accommodation, voluntary health insurance, stock options, or share purchase schemes.)

Calculations

Once the hourly remuneration has been worked out, the gender pay gap is calculated in accordance with the Regulations and certain disclosures are also required. For the purposes of the calculations, employers need to do the following;

1. Organise the employees into quartiles;
2. Calculate the proportion of males and females in each quartile;
3. Calculate the mean hourly remuneration of male and female employees and then calculate the pay gap in mean hourly remuneration – do the same for part time and temporary employees;
4. Calculate the median hourly remuneration of male and female employees and then calculate the pay gap in median hourly remuneration – do the same for part time and temporary employees;
5. Calculate the mean bonus remuneration of male and female employees and then calculate the pay gap in mean bonus remuneration;
6. Calculate the median bonus remuneration of male and female employees and then calculate the pay gap in median bonus remuneration;
7. Calculate the percentage of males and females paid bonuses;
8. Calculate the percentage of males and females who received BIK.

The calculations are relatively complex and detailed and so employers are likely to enlist the assistance of accountants/auditors to prepare the calculations.

Disclosures

Once the calculations have been completed, then the employer must also publish the reasons for any gaps and actions being taken to reduce any gap.

Issues arising when identifying the reasoning for this pay gap may include career progression and promotional issues causing to a reduction of females in senior management roles, indeed unequal distribution of male and female employees on part time and temporary contract roles.

The obligation is for the employer to publish gender pay gap information (there is no specific template required to publish the results) on their website or in a place that is accessible for all employees, this information must remain available for three years after its publication. For the 2022 reporting cycle, the information does not have to be submitted to the Minister, but plans are in place to develop an online reporting system for the 2023 reporting cycle.

An employer must report their gender pay gap information annually.

Potential risks for employers

The Act provides the Irish Human Rights and Equality Commission with the power to make an application to the Circuit Court or to the High Court for the granting of an order requiring the employer concerned to comply with the Regulations.

Employees can refer a claim to the Director General of the Work Relations Commission alleging that their employer has failed to satisfy the gender pay gap legal obligations. The Director General shall investigate the complaint if he or she is satisfied that there is a prima facie case to warrant the investigation.

Conclusion

Given that the legislation is being introduced on a staggered basis some employers may not fall under the scope of these obligations until 2025. However, organisations can take steps now to equip themselves towards publishing information on their own gender pay gap. For example, making sure that employers can readily access the date required to complete the calculations will be key.

For many small to medium employers, this new obligation may put strain upon existing resources giving rise to the need to outsource the analysis and publication of gender pay gap information. For all organisations large to small, the introduction of this reporting obligation will certainly require accurate records of employee information, particularly payroll information, which should be continually updated. The employer must also take due care as a data controller to use employee data responsibly and keep employees informed on the retention and use of their own personal data.