On the 12th December 2018, Final Statements were made in the Seanad in relation to the Employment (Miscellaneous Provisions) Bill 2017 (“the Bill”). One noteworthy amendment was the deletion of Section 20 from the proposed legislation. Section 20 sought to address issues of false designation of self-employment which not only deprives employees of important employment rights but also deprives the State of important revenues.
Section 20 dealt with the incorrect designation by an employer of an employee as self-employed, making it an offence punishable by fine and imprisonment. The Section had also covered situations where the employer was a body corporate, and made it an offence for an officer of the body corporate who knew or colluded in the commission of the offence to also be held liable.
Minister for Employment Affairs and Social Protection, Regina Doherty speaking at the Committee Stage in the Seanad on the 4th December 2018, stated “The amendment is of such potential impact that it should be subject to proper and thorough scrutiny at a pre-legislative forum in order to provide the Houses of the Oireachtas and all stakeholders with the opportunity to consider the full implications of what is being proposed”.
Minister Doherty envisages addressing the situation in relation to the false designation of self-employment more fully in separate legislation in the next year.
The Bill is scheduled for discussion before the Dail today, 19th December 2018.
Irish Human Rights and Equality Commission (Gender Pay Gap Information) Bill 2017
On the 28th November 2018, the Irish Human Rights and Equality Commission (Gender Pay Gap Information) Bill, (the “Bill”) at the Third Stage in the Dail was recommended and referred to the Select Committee Stage.
Recent amendments include changes to Section 32 of The Irish Human Rights and Equality Commission Act 2014, by the insertion after Section 32 of new section 32A. which sets out as follows:
32A. (1) The Commission may make a scheme under this section (“a scheme”) requiring employers to publish information relating to the pay of their employees for the purpose of showing whether there are differences in the pay of male and female employees and, if so, the nature and scale of such differences.
(2) A scheme shall not apply to employers having fewer than 50 employees.
(3) A scheme may prescribe—
(a) classes of employer to which the scheme relates,
(b) classes of employee to which the scheme relates,
(c) how to calculate the number of employees that an employer has,
(d) how to calculate, for ease of comparison, the pay of employees,
(e) details relating to the information required to be published under the scheme, and
(f) the form and manner in which, and the frequency with which (which shall not be more frequent than once in each year), 3 5 10 15 20 25 30 information is to be published under the scheme.
(4) Without prejudice to the generality of the foregoing, a scheme shall require employers to whom the scheme relates to publish information in relation to—
(a) the difference between the mean hourly rate of pay of male employees and that of female employees,
(b) the difference between the median hourly rate of pay of male employees and that of female employees,
(c) the difference between the mean bonus pay paid to male employees and that paid to female employees,
(d) the difference between the median bonus pay paid to male employees and that paid to female employees,
(e) the proportions of male and female employees who were paid bonus pay, and
(f) the proportions of male and female employees in the lower, lower middle, upper middle and upper quartile pay bands.
(5) A scheme shall require the breakdown of information by reference to the full-time or part-time status of employees and by reference to their ages.
(6) An employer who contravenes the provisions of a scheme made under this section is guilty of an offence and is liable on summary conviction to a class A fine.
(7) An employer who employs more than 100 staff, and who contravenes the provisions of a scheme made under this section, shall have their company title published by the Irish Human Rights and Equality Commission.
Some concern was voiced by Deputy David Staunton during Dail debates at the Select Committee Stage on the 28th November 2018. Specifically in relation to subsection (1) above and the provision of the scheme by the Irish Human Rights and Equality Commission (“the IHREC”) whereby, the authority to make the scheme would be at the sole discretion of the IHREC and the approval of Minister is not required. This would be giving a quasi-legislative power to the IHREC, “with no mechanism for oversight or control” which would be unconstitutional.
19th December 2018
Anne O’Connell Solicitors
Fitzwilliam Hall
Fitzwilliam Place
Dublin 2
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