Employer Resources Newsletter - March 2022

Codes of Practice published on Equal Pay & Sexual Harassment and Harassment at Work – what should nonprofit organisations know?

The Irish Human Rights and Equality Commission (IHREC) published two new Codes of Practice earlier in March on Equal Pay and Sexual Harassment & Harassment at Work.

The Codes of Practice provide guidance for employers, trade unions and employees across all sectors including the non-profit to ensure equal pay is given for like work as well as protecting employees from sexual harassment and harassment in the workplace.

The provisions laid out in both codes are admissible in evidence in proceedings before the Courts, the Workplace Relations Commission and the Labour Court.

Code of Practice on Equal Pay

The Code aims to provide guidance to employers and employees as well as representative groups on:

• The right to equal pay for like work
• Identifying and eliminating pay inequality
• Resolution of pay disputes

Irish equality law sets out nine protected grounds based on which a person cannot be discriminated against, which are gender, marital status, family status, age, disability, sexual orientation, race, religion and membership of the Traveller community.

To establish a claim for equal pay under the legislation, an employee must show that they are performing “like work” with that of a chosen comparator, that they are receiving less pay for that work than their comparator and the reason for this is based on one or more of the nine grounds mentioned above. The Code outlines the various elements to be considered when assessing comparators.

Guidance is provided in the Code to help employers in non-profit organisations identify pay inequality and includes ways to eliminate it, including how to conduct a pay review incorporating a rational and objective job evaluation model.

The Code sets out how an employee who believes that they are not being paid equal pay for their like work should firstly raise this internally before proceeding to the Workplace Relations Commission or Courts.

The Code of Practice for Equal Pay can be accessed here.

Code of Practice on Sexual Harassment and Harassment at Work

The Code aims to provide guidance to employers, trade unions and employees on:

• The meaning of sexual harassment and harassment in the workplace
• How it can be prevented
• Steps to ensure procedures are in place to deal with the issue and how to prevent it reoccurring.

The Code highlights that people in precarious work and new workers, including immigrant workers, are particularly vulnerable to sexual harassment and harassment.  Guidance is given to support employers in non-profit organisations in addressing and resolving complaints. Advice is also provided to support the development of a comprehensive, effective and accessible policy that will minimise sexual harassment and harassment in the workplace.

The Code of Practice on Sexual Harassment and Harassment in the Workplace can be accessed here.

After-School Worker Awarded €10,000 for Race Related Discrimination and Harassment

Background

The Complainant was told at interview stage that their English was at a sufficient level to carry out the position with the Respondent but was then harassed during the course of her employment and ultimately dismissed as a result of her poor level of English.

Summary of Complainant’s Case

On the 29 August 2019 the Complainant was invited to interview for a role with the Respondent, who runs a Community After-School Service. The Complainant explained to the Respondent at the interview that her English wasn't perfect, but the Respondent noted that her level of English would not be a problem in carrying out the job.

The Complainant commenced working for the Respondent on 2 September 2019 and felt that it immediately became apparent that her role was different from that which was explained to her during the interview. She raised concerns with the Respondent that she didn't feel her English was good enough to carry out the tasks that she was charged with, but the Respondent noted that her English was okay.

The Complainant felt that the Respondent was very rude to her during the course of her employment, that he was aggressive and was continually shouting at staff within earshot of the children.

One day when the Complainant was in the kitchen preparing food she noted that she heard the Respondent shouting her and another employee’s name and then began screaming. When the Claimant asked him what the issue was, the Respondent replied in a very rude and loud voice “both of you go work on your English”. “What language am I speaking, Japanese?” The Respondent used derogatory language to describe the level of her English. The Complainant put forward that after that day, the shouting happened every day.

On 12 September the Complainant said that she was reheating food in the kitchen when she heard the Respondent shouting her name over and over. When she came out of the kitchen area the Respondent shouted at the her that she was not looking after some children when she was supposed to be. The Complainant noted that she began to explain that she was in the kitchen preparing food for the children, when the Respondent hit her on the mouth and held his hand over her mouth saying “don't speak, just listen.” The Complainant said she got very frightened and began to cry and the Respondent shouted at her to go to the children and take them to changing room. The Complainant said she did what she was told but all the while she was desperately upset.

The following day the Complainant said she was frightened to go to work but a co-worker that she lived with told her that if she didn't go, the Respondent would not pay her weekly wages. Because the Complainant needed the money to pay for food and her rent, she had to keep her job and felt that she had to forget about what had happened.  On Friday 13th September the Complainant asked the Respondent for her wages and then told him that she would be going to Gardai about what happened, to which he responded that it would not be worth her efforts as he was Irish and she was a ‘simple Brazilian’. He again used derogatory language to describe her level of English.

On the 14 September the Respondent texted the Complainant telling her that there was no work for her the following week. The Complainant became very frightened, so she spoke to her college teacher about the incident, and he advised her to go to the Gardai and to file a claim with the WRC. She did both. The Complainant felt that she was treated less favourably because she is Brazilian and because her English was not good.

Summary of Respondent’s Case

The Respondent denied all of the allegations made by the Complainant during the hearing. He stated that the real issue at work was that the Complainant had an issue with another employee regarding a love interest.  He further stated that this other employee had notified him that she could not come into work anymore because she was being threatened by the Complainant. The Respondent noted that this other employee had good English and was essential to the Respondent’s business, so he therefore decided to tell the Complainant not to come in the following week.

The Respondent said he did not remember the incident on September 12th. He noted that 4pm was generally an extremely busy time of day at work, with staff being under pressure. He denied that he hit the complainant, that he used derogatory language to describe her level of English and that he referred to her as a simple Brazilian. He asserted that the Respondent had made this all up.

The Respondent confirmed that he was contacted by the Gardai and informed that a complaint had been made against him, but that he had not been charged with anything to date. The Respondent confirmed that he did decide to let the Complainant go because her English wasn’t good and because that in turn raised a potential health and safety risk to the children in the Community After-School Service, if she failed to understand important instructions in relation to a child with special dietary needs, for example.

The Respondent noted that the Complainant did not have a contract of employment, that he intended to get the contract out to her, but that September was an extremely busy month and he didn’t have the time. He did not invoke a disciplinary process in relation to the allegations made by the other employee.

Findings and Conclusions

The Adjudicator noted:

• The Complainant had made a statement to the Gardai in relation to the alleged assault and that the Respondent had been contacted by the Gardai in relation to the matter but no charges have been made to date.
• The Complainant stated that she was treated the way she was because she is not from Ireland and does not have good English and that the Respondent would not have treated her in this way had she been from Ireland.
• That the Respondent, when answering questions was found to be very evasive and that his evidence was found to be less than credible. On numerous occasions he amended or changed previous evidence given and was unable to clarify certain matters when put to him.

On that basis, the Adjudicator noted their preference for the Complainant’s evidence which was corroborated in parts by documentary evidence. The Adjudicator found that the Complainant had established a prima facia case of discrimination and that the Respondent had failed to objectively justify the discrimination.

Decision: The complaint succeeds. The Adjudicator awarded the Complainant €10,000.00

Key Learnings for Employers

Under the Employment Equality Acts 1998-2015, a statutory framework is set out to uphold equality in Irish workplaces as well as setting out to prevent discrimination against employees, agency workers and applicants for employment. The purpose of the Acts is to eliminate discrimination in relation to employment and to provide a framework of enforcement to achieve this aim.

The Acts outlaw discrimination in work-related areas such as pay, vocational training, and access to employment, work experience and promotion.  Employers should ensure that the policies and procedures they have in place are compliant with the statutory framework, which in turn will support the promotion of a positive equal opportunities/diversity culture.

Any employer who is faced with such a claim will need to demonstrate that they are applying their policies and procedures at work and provide objective justification of any such employment-related decisions which are claimed to be discriminatory.

Government Set to Introduce Time Off and Paid Leave for Victims of Domestic Abuse

The Government is set to introduce paid work leave for victims of domestic abuse and violence this year. It was reported in the media in January that Minister for Children, Equality, Disability, Integration and Youth, Roderic O’Gorman TD is set to bring legislation to the cabinet shortly.
 
It is expected that the legislation will include a five-day statutory leave entitlement to ensure victims of domestic violence have some form of financial independence. The publication of the proposed legislation is expected to coincide with the publication of a wider Government strategy to address gender-based violence that is due this month (March).
 
The measure is being added to the Work-Life Balance Bill that is set to be enacted by the summer.
 
The implementation of paid domestic violence leave would see Ireland following the lead of countries such as New Zealand and the Philippines where those who have experienced domestic violence receive the support to help them end an abusive relationship and find new accommodation.
 
The Work-Life Balance Bill is also set to allow breast-feeding mothers to take one-hour daily breaks to breastfeed and lactation breaks for up to two years. Currently mothers are entitled to take one-hour each day up to 26 weeks after birth.

Gender Pay Gap Information Act 2021 - UPDATE

Minister O’Gorman also recently announced that the commencement order for gender pay gap reporting obligations for Irish employers will be published in the coming weeks. Organisations with 250+ employees will be required to report their gender pay gap in 2022.

The Gender Pay Gap Information Act, 2021 will compel employers to reveal details of the differences between their male and female employees’ salaries in an economy where the gender pay gap currently stands at 14.4%.

Employers will choose a ‘snapshot’ date of their employees in June 2022 and will report on the hourly gender pay gap for those employees on the same date in December 2022. The data collected will be based on employees’ remuneration for 12 months before this date. Employers are then required to submit this information to a designated public body and publish it on their own organisations website within six months and before the end of December 2022.

Employers with 250 or more employees will be asked include the following information in their GPG reports:

• 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.

This threshold will decrease to a headcount of 150+ employees within the first two years of the Regulations and drop further to capture all employers with 50+ employees within the first three years of the Regulations. When announcing on 8th March 2022 that the Regulations in respect of Gender Pay Gap [GPG] reporting will be published imminently, the Minister advised that the Department of Children, Equality, Integration and Youth will publish guidance for employers on how the GPG calculations should be made and also signalled that that plans are in place to develop an online GPG reporting system for 2023.

So what now for Employers in the Nonprofit Sector?

If you are an Employer who is in scope of the legislation you will have a short lead in time this year [December 2022] for making your first GPG Report. In anticipation you need to be taking preparatory steps to ensure that you have the right strategy for collating, computing, reporting, and ultimately communicating, the figures – and that you have determined the necessary steps to be taken to address any differences.