Recent Updates on Employment Law
Avoid Claims of Gender Pay Discrimination
The gender pay gap in Ireland remains a pressing issue, hindering our progress to equality between men and women. We have seen limited action thus far being taken to combat this. However, as of the 26th June 2018, The General Scheme of the Gender Pay Gap Information Bill was published by the Minister for Justice and Equality, Charlie Flanagan TD, and the Minister of State for Equality, Immigration and Integration, David Stanton TD. The Bill provides for the publication of information on gender pay gaps that exists in firms, and it is hoped that this will compel employers to pay both men and women equally. Initially, the regulations will apply to employers with over 250 employees, then to those with over 150 employees, and eventually to those with over 50 employees. The regulations shall apply to the public as well as the private sector. The proposals require firms to detail any discrepancies in bonus pay, hourly pay, part-time pay and the pay of men and women on temporary contracts. Companies will be required to outline such discrepancies in an annual report or a yearly statement.
At present, the gender pay gap in Ireland is reported to be 13.9%. The proposed legislation aims to significantly reduce this barrier to equality by shedding light on the particular causes which underline such a considerable margin. In order to ensure compliance, the Scheme allows a power for the Irish Human Rights and Equality Commission to apply to the Circuit Court for an order requiring an employer to comply with the legislation. An employee may also seek an order requiring compliance by applying to the Workplace Relations Commission. Furthermore, the Workplace Relations Commission shall be authorised to conduct on-site inspections to ensure that companies are abiding by the proposed legislation. It is hoped that the legislation will be enacted in Ireland before the end of this year.
Avoid Age Discrimination on Retirement
In April 2018, the Irish Human Rights and Equality Authority issued guidelines on the matter of retirement and fixed-term contracts. The guidelines aim to ensure that older workers, who wish to continue in employment, are not discriminated against on the basis of their age. The issue of retirement has been a contentious area, particularly in recent years, with the State pension being postponed to age 66. This is set to further increase in coming years. Therefore, the guidelines provide a useful synopsis of the principles relating to retirement that have emanated from recent case law and statutory provisions, which is beneficial to both employers and employees.
The guidelines emphasise that it does not constitute as discrimination to fix different ages for retirement, on the condition that it is objectively and reasonably justified by a legitimate aim and the means of achieving that aim are proportionate and necessary. Employers are provided with useful guidance on the meaning of ‘’objective justification’’ and the requirements of the relevant test. Furthermore, the guidelines summarise the means in which an employer may set a legally enforceable retirement age. The guidelines were issued to advise employers on how to meet their legal obligations under the Employment Equality Acts, whilst simultaneously notifying employees of their right to equal and fair treatment in the workplace.
Proposed Additional Protections for Casual and Temporary Workers
The Government are of the view that many casual and temporary workers are currently at risk of being exploited due to ambiguity regarding their contracts and uncertainty regarding the terms of their employment. The necessity of additional legal protections for casual and temporary workers has been acknowledged by the Government, with the Employment (Miscellaneous Provisions) Bill 2017 aiming to increase such protections. Given the increased casualisation of work in recent years, these proposals are a welcomed step towards a more robust legal footing for employees engaged in casual or temporary work. Concern has, however, been expressed regarding the increased administrative burden of these proposals and the cost of such on employers.
The draft legislation aims to ensure that basic employment contracts are provided, in writing, within five days of commencing employment. This will certainly impact on the workload of administrative staff. However, new employees will be provided with clarity regarding pay, working hours, length of contract, etc. The proposals also aim to prohibit ‘’zero-hours’’ contracts in most circumstances. It is further proposed to introduce a floor payment for low-paid workers who are called into work but are not provided with minimum work. Additionally, employees will be enabled to request to move from a low hour contract to a band of hours that reflects the hours worked, after a period of 18 months in their current employment. The key aspiration of the Bill, which is not law yet, is to enhance the security of working hours for those on casual or temporary contracts and provide a greater level of protection to employees with precarious working hours.
Proposed Prohibition of Zero-Hour Contracts
Furthermore, the Government also seeks to address the issue of so-called ‘’zero-hours’’ contracts, which can leave employees open to the potential of being exploited by employers due to the insecurity and the unpredictability of their contracts. A ‘’zero-hour contract’’ is a type of employment contract whereby an employer has no obligation to guarantee a minimum number of hours of work to an employee. However, employees are obliged to make themselves available for work for a certain number of hours every week. These contracts can result in irregular income for employees. The Government is hoping to combat this issue by enacting the Employment (Miscellaneous Provisions) Bill 2017, which is not law yet. It would amend section 14 of the Organisation of Working Time Act 1997 to effectively prohibit zero-hour contracts, except in limited, specific circumstances. Such exceptions would include any work completed in emergency circumstances or short-term relief work to cover routine absences, although the extent of these is yet to be seen.
However, the proposed legislation thus far has not been without controversy. Concern has been expressed by employers who rely on such contracts for absence cover or because of the nature of their business. The Bill provides for an imperative to commit to specific hours of work in a statement that is to be provided to an employee within five days of commencing employment. This may be problematic for some employers who may find hours extremely difficult to predict due to the nature of the work. It remains to be seen whether the Bill will have a positive impact on those employed under precarious contracts.
John Boylan,
Employment Lawyer