Employer Resources Newsletter - August 2022

Supporting Nonprofit Organisations Navigate Gender Pay Gap Reporting

The Wheel’s Gender Pay Gap Report for the Community, Voluntary and Charitable Sector[1], published in September 2020, highlights that while women make up two thirds of employees in the community and voluntary sector, they are paid on average 15% less than men. The new law will certainly help address issues around pay but it brings gender balance into focus and this is something that the sector clearly needs.

In previous newsletters, we have provided updates on gender pay reporting and proposed legislation on gender balance. And after being on the political agenda for quite a significant amount of time, the Gender Pay Gap Information Act was finally signed into law in July 2021. The Act requires organisations, including those in the nonprofit sector, to publish their first report by the end of this year.

In May, the Government published its guidance on how employers can calculate the gender pay gap in their organisation. The guidance outlines what information needs to be reported and how it should be used to calculate gender pay gap. In summary, employers are required to report:

• the mean and median gap in hourly pay between men and women

• the mean and median gap in bonus pay between men and women

• the mean and median gap in hourly pay of part-time male and female employees

• the mean and median gap in hourly pay of temporary male and female workers

• the percentage of men and of women who received bonus pay and benefits-in-kind

• the proportions of male and female employees in the lower, lower middle, upper middle and upper quartile pay bands.

However, there was some confusion relating to interpretation of some of the guidance. To provide some clarity, a FAQ document has also been published.  The full document can be accessed here.

Reduction in headcount: Initially, organisations with 250+ employees are obliged to report the gender pay gap data. The deadline for this is this December. If an organisation reduces its headcount below 250 after their snapshot date in June, they are still obliged to report their data. The employer should be reporting on those employed on the snapshot date using the data for the previous 12-month period (June 2021 – June 2022).

Bonus payments including shares: Further guidance has been provided on how to report bonus payments and when adjustments are required. Annual bonus payments are straightforward given they are within the 12-month reporting period. Additional monthly payments, such as commission, earned in the 12-month period should be included in the hourly rate calculations.

However, if an employee receives a payment that relates to a timeframe longer than the reporting period it should be adjusted to calculate the amount relating to the reporting period only.

Statutory leave payments: In the original guidance note, statutory pay, such as maternity leave, was not included given the employee is not at work nor are they available to work. However, guidance published by the Department of Children, Equality, Disability, Integration and Youth stated that these payments should be included.

The latest information states the preferred approach to calculate the data for any employee in receipt of statutory payments is to use the notional number of hours that the employee would have worked had they not been on leave.

Pension contributions: The data used to calculate the hourly rate should be that before deductions at source, i.e. before tax. If payments, such as pension contributions, are taken before tax they should be included. Any payments taken from the net salary should not be included.

Employment status of employees: The employment status of employees as of the snapshot date should be noted; full-time, part-time, temporary, contract. The guidance provides details on whether they should be included and if so, how the data of each should be reported.

In terms of the definition of “employee” for the purposes of gender pay reporting, the clarification note states that all employees are counted however, in instances where an employee does not self-identify as either gender, an employer may omit the individual from the gender pay gap calculations but this must be handled sensitively and appropriately by the employer.

As the HR partner for members of The Wheel, our team is available to provide assistance with advising on the capturing, calculating and analysis of gender pay data of organisations in the nonprofit sector. If you require support, please contact us.

[1] “An exploration of the gender pay gap for managers in voluntary, community and charitable organisations.” Published by The Community Foundation of Ireland and The Wheel, 2020. See here: https://www.wheel.ie/about-us/publications#pay 

Parental Leave Claim Thrown Out of the WRC – Employee Sought to Reduce Working Week

Background

While not a case relating to the nonprofit sector, there are key learnings relating to statutory leave, which impacts every sector. The Complainant made complaints to the WRC under the Parental Leave Act 1998 on 29th November 2020 and on 8th January 2021, describing the same issue within each complaint, which related to a parental leave request she had submitted to the Respondent Employer. 

Summary of Complainant’s Case

The Complainant requested a temporary reduction of her contractual hours to 19.5 rather than 39 hours per week. She reassured the Respondent of her flexibility and also expressed her willingness to be transferred to any location within the department if that was necessary to grant the approval. Within less than 24 hours the Respondent emailed the Complainant and refused to reduce her contractual hours and suggested that she should resign from her current position as Social Care Leader. The Respondent offered her a position of a part-time or relief Social Care Worker and made it clear that these roles would be on a reduced salary. 

The Complainant asked the Respondent to reconsider the decision. At this point she applied for parental leave. However, this was refused.

The Complainant escalated her applications to more senior management but did not get approval for 19.5 hours/week of parental leave. Instead, 8 hours of parental leave was conditionally approved.

The Respondent did not acknowledge or comment on the alternatives that had been suggested by the Complainant. She sought clarification regarding her actual parental leave application and the final decision on it, but this was unanswered.

In December, she received an email in from a new manager who informed her that she was her new supervisor. She was also informed that she was being transferred to another part of the organisation and that this transfer would affect her employment conditions. Substantial additional duties would be assigned to her due to the transfer.

Summary of Respondent’s Case

The Complainant submitted a request to reduce her hours to which the Respondent replied, informing her that unfortunately due to the Complainant's role as a Social Care Leader, it requires management presence for full time hours and in other locations. Further, the Social Care Leader is the ‘person-in-charge’ from a HIQA perspective (HIQA is the Regulator) and HIQA requires that the role is full-time. The Respondent offered the position of a Social Care Worker to the Complainant, and this would ensure that her permanency would remain, and offered the opportunity to meet and discuss the options further if she so wished.

The Complainant replied ‘if demoting me is the only option that the organisation can propose I would definitely want to meet you and discuss it’ and noted that as an alternative she could apply for parental leave.

The Respondent assured the Complainant that she was firstly not being demoted, that she had always been a strong manager and that this was in no way a reflection on her ability and also made reference to the fact that 19.5 hours a week of Parental Leave would not be able to be approved, but 8 hours per week - taking the leave in blocks - could be arranged.

Following this, the Complainant was absent on numerous and continuous periods of sick leave. On 1st March 2021, whilst on a period of sick leave, she sent her letter of resignation, stating that her last day of employment would be 28th March 2021.

The Respondent noted that no previous employee has been in receipt of 19.5 hours of Parental Leave per week. The Complainant was also previously engaged on a period of Parental Leave in January 2019 which was subject to 8 hours per week for a period of six months.

The Respondent stated that they have reiterated on several occasions to the Complainant, their position with regards her application of Parental leave and that she was fully aware of any other possible avenues which may have been explored in order to help with her situation. 

Findings and Conclusions

The EU Parental Leave Directive was transposed and implemented into Irish law by the Parental Leave Act in 1998. Since then, the Act has been amended by the Parental Leave (Amendment) Act, 2006 and further amended by the Parental Leave (Amendment) Act of 2019.

Parental leave allows parents to take unpaid leave from work to spend time looking after their children. It is possible to take up to 26 weeks’ parental leave for each eligible child before their 12th birthday.

An entitled employee may take this leave in one continuous block or two separate blocks of at least 6 weeks each with the proviso that there must be a gap of at least 10 weeks between the 2 blocks.
It is possible to break parental leave into working days or hours (or a combination of both) subject to agreement by the employer.

In this case the Respondent employer had a policy on Parental Leave which outlined that it was possible for employees to request a more flexible pattern of parental leave with the agreement and approval of the employer.

As a statement of fact the adjudicator noted that the Respondent had not approved the request for parental leave as presented by the Complainant, for operational reasons.

Decision

The adjudicators determination outlined that the Respondent had not breached the Act and had exercised their right to say no to the proposal presented by the Complainant. Under these circumstances the adjudicator found there to be no option but to find the complaint as presented, as not well founded. Accordingly, the complaint failed.

Key Learnings

An eligible employee is currently entitled to avail of up to 26 working week’s unpaid parental leave in respect of each relevant child. An employer is obliged to permit employees to avail of parental leave applied for, in continuous periods of 6 weeks or greater at a time, subject to the right to postpone leave. Periods of leave of a lesser duration need only be approved at the discretion of the organisation. It is advised that consistent decisions are made in relation to such requests for leave, otherwise the organisation may set a precedent which entitles all employees to avail of shorter leave periods.

In this case, the employer was found to be justified in their decision not to approve the parental leave request of 19.5 hours per week. The employer’s Parental Leave Policy outlined that it is possible for employees to request a more flexible pattern of parental leave with the agreement and approval of the employer. The employer was therefore found not in breach the Act by exercising their right to say no to the employee’s request.  In addition, the employer could clearly outline the adverse impact on the organisation arising from the granting of such a request and could also demonstrate that no previous employee had been in receipt of 19.5 hours of Parental Leave per week.

New Bill set to modernise Employment Permits

The Government published a bill - the Employment Permits Bill - that will modernise the Employment Permit process.

The Bill is being drafted in response to the Review of Economic Migration Policy carried out by the Department of Enterprise, Trade and Employment in 2018. The review stated that, while the employment permits system provides a robust framework to supplement skills and labour needs in the State, the current legislation imposes considerable inflexibility in its operation. The review recommended increasing the agility and effectiveness of the existing system while retaining the key policy focus of supporting the economy and the labour market through evidence-based decision making. The Department has indicated that the new Bill will be published in the Autumn.

Under the Bill, a Seasonal Employment Permit will be introduced to allow for permits to be granted to workers in sectors that require employees at certain times of the year. There will be an extensive revision of the labour market needs test to ensure it is more relevant and efficient.

Salary thresholds will be included to ensure wages are in line with salary increases in Ireland. The Bill will see the streamlining of a number of requirements to the permit granting process, to make it more efficient and it will move operational criteria to the Regulations. A number of other conditions for the granting of a permit will be included such as training and accommodation support for foreign workers.

New Bill aims to enhance and reform Personal Injuries Assessment Board

The Government has published a new Bill that aims to reduce the time and expense associated with personal injuries litigation. As health and safety remains a key priority for employers, personal injuries claims are always a risk when heath and safety falls short on compliance.

It is therefore important to note the Personal Injuries Resolution Boards Bill 2022 aims to enhance and reform the Personal Injuries Assessment Board (PIAB).  When enacted, the Bill will increase the number of personal injury claims settled through an enhanced Resolution Board by encouraging earlier resolution of claims and minimising costs. 

The Bill will amend the Personal Injuries Assessment Board Act 2003-2019 by:

• Offering mediation as a means of resolving a claim, helping to reduce court case costs
• Including claims of a wholly psychological nature
• Extending the time to assess claims where an injury is yet to settle rather than releasing to litigation
• Reducing fraud by seeking proof of identity on application and disclosing information to An Garda Síochána

Set up in 2003, PIAB provides independent assessments of personal injury claims for compensation following road traffic, workplace or public liability accident. Claims made to PIAB often take much less time than if made through the courts.

In its most recent Annual Report 2021, PIAB states that the number of claims it has dealt with has decreased by 31% over the past two years, with the average award now standing at €19,451, down from €24,026 in 2020.

Employers Liability made up 13% of claims in 2021, which was the same percentage as the previous year. This is also echoed by our own HR Barometer research, which found that 15% of organisations had experienced claims for personal injuries in 2021.