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Code Of Practice On Equal Pay – Published March 2022

This month the Irish Human Rights and Equality Commission (IHREC) published a new Code of Practice to provide guidance on-

The Code itself is admissible in evidence in a case but is not binding.  It’s guidance is taken from the Employment Equality Acts 1998 – 2021 (‘EEA’), European legislation, case law and Article 157. 

Equal Pay

A person providing ‘like work’ that is the same, similar or of equal value to another for the same employer or an associated employer should receive equal pay.  Where they do not, if the only difference between the Complainant and their comparator is one of the nine prohibited grounds as set out in the EEA and the Respondent cannot prove that the pay difference was attributable to another factor, the Complainant may be entitled to succeed in an award for discrimination  either through the WRC (up to 3 years arrears) or the Circuit Court (up to 6 years arrears, or unlimited for gender discrimination).

The Code confirms that the EEA covers all employments, whether part time, fixed term, agency, flexible or other employment arrangements.  It also imposes the same obligations on any employer, regardless of size although the Employer’s size may have an influence on how they implement policies to ensure they do not fall foul of the Act. 

The Code sets out the prohibited grounds and confirms the expanded definition of discrimination includes any of the grounds existing but also includes a ground that has existed, may exist and also that may be imputed on a person. Further, discrimination by association must also be considered.  This is most likely to occur in situations where the Complainant has a carer’s role for another with a disability.

It sets out the definition of ‘Equal pay’ which includes not only ‘pay’ but all remuneration encompassing any benefit, or other consideration such as phones, laptops as per s2 (1) EEA.  However, pensions were expressly excluded from remuneration for these purposes by CJEU as they come under specific pension legislation. 

Discrimination does not need to be direct but can be indirect.  This most commonly occurs where the reasons for a pay differential may appear to be justifiable or even necessary. However, the difference in fact adversely affects a cross section of society disproportionately to others, creating indirect discrimination.

The Code helpfully gives guidance on ‘Like Work’, ‘Same Work’ ‘Similar Work’ and ‘Equal value’

‘Like Work’ is work that is the same or equal value to comparator,

‘Same Work’ must be interchangeable and conditions similar and 

‘Similar Work’ is where the differences in responsibilities or duties are insignificant or infrequent eg a male and female factory worker who do the same work but occasionally the males lift heavier machinery would be considered similar work.

‘Equal value’ is defined as equivalence in skill, physical and mental requirements of responsibility and working conditions.  This allows for dissimilar jobs that are of equal value to be comparable citing Doran & Ors v Minister for Finance & Ors wherein clerical officers proved that their work was of equal work to paper keepers although their jobs were essentially different.  In the UK speech therapists were deemed to do equal work to senior hospital pharmacists and clinical psychologists (Enderby)

The Code continues to set out the factors the Complainant must prove;

Once these facts are established, it is for the Employer to defend itself on one of the following grounds;

Elimination of Pay Inequality

The Code requires employers to:

Resolution of Pay Disputes

The Code provides that Informal and internal routes should always be the first port of call in the event of a dispute but if these avenues fail, the Director General of the WRC will receive complaints.  The Code also includes a draft complaint form for these purposes and a questionnaire that should be presented to the employer in order to gather ‘material information’ about any comparable employees at the outset of the hearing. 

The Director General has the power to order a workplace investigation and for the Adjudicator to issue a report on this in order to determine ‘like work’ and conditions pertaining to the workplace. 

Takeaway for Employers: It would be prudent for employers to assess their pay structures and reasons for any differentials that may occur regularly.  Evaluating and documenting each role in light of the above criteria can ensure that should a workplace investigation or complaint arise against you, you can readily provide your rationale for each employee’s pay.  An assessment of any factors that may be unwittingly indirectly discriminatory would also be prudent. 

Link

Authors – Nicola MacCarthy and Anne O’Connell

31st March 2022

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2

www.aocsolicitors.ie

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