Pay Transparency 

In terms of pay transparency, the Scheme provides for transparency at the job recruitment stage and in respect of advertising roles. If implemented, it will require employers to give information on salary levels in the job advertisements. Interestingly, this requirement goes beyond what is required under the Directive – which does not state that the information needs to be published in a job advert but rather provides that it can be published in the job advert or simply provided in advance of the interview. The Scheme, as currently drafted, also prohibits employers from asking job applicants about their pay history or current rate of pay, as provided for in article 5 of the Directive.

What to look out for? 

The Scheme will be scrutinised and developed as it progresses through the legislative process, but it seems likely that employers will be required to carefully consider the precise information to be included in a job advert. It is anticipated that the Scheme will prevent employers from publishing broad salary ranges but how precise employers will be required to be remains to be seen. Employers should take this opportunity to do a full pay audit of staff and establish salary ranges as they will need these for job adverts and will likely not be able to ask applicants about their salary levels going forward.

Other Provisions of the Scheme to Look out for…. 

The Scheme also provides for some key developments to the Employment Equality Act 1998 (the “1998 Act”):

• Currently there are certain provisions relating to positive action in the 1998 Act. The Scheme broadens the positive action grounds to ensure equality in practice by including “prospective employees”. The purpose of this amendment is to address the employment participation rates of groups who have historically been lower than average, such as the travelling community, disabled persons and lone parents. This provision allows employers to directly develop recruitment initiatives focused on grounds other than gender, for groups where there are lower participation rates in the labour market. 
  
• The Scheme seeks to remove the provision in the 1998 Act permitting a lower rate of pay to a disabled person where their productivity is restricted compared to other staff. 
  
• Currently under the 1998 Act, employers are entitled to set out specific educational, technical or professional qualifications required for a particular role without being required to justify those qualifications. The Scheme proposes to introduce a requirement on employers to show that the specific criteria they seek of a job applicant is necessary and proportionate to the role.

Changes to Time Limits 

Of particular note, the Scheme proposes to extend the time limits for submitting a claim to the WRC under the 1998 Act to 12 months initially, with a possible extension to 18 months where there is reasonable cause. Currently a claim must be submitted within six months of the alleged incident, with the ability to apply for an extension for a period to up to a maximum of 12 months where the complainant has established reasonable cause. 

Similarly, the Scheme proposes an extension of time for submitting a claim under the Equal Status Act 2000 (the “2000 Act”). The 2000 Act currently requires complainants to firstly notify the service provider of the alleged discrimination within 2 months of the incident. Under the Scheme, complainants would have up to 4 months to notify the service provider of the alleged discrimination, with the possibility of an extension by a further 2 months. The Scheme also provides for the time limit for submitting a claim to the WRC to be extended from 6 to 12 months, with the possibility of an extension for a further 6 months.

Should these extended time limits be introduced as proposed, it will in fact double the time period that an individual could bring a claim under the 1998 or 2000 Act and arguably significantly change the landscape in managing issues and claims relating to discrimination.

New Remedies?

New Remedies? It is also worth noting that under the 2000 Act where a person or organisation is found guilty of discrimination, the compensation limit is currently €15,000. In order to be brought in line with the EU Equality Directives, which require that all compensation be ‘effective, proportionate, and dissuasive’, the Scheme proposes to raise the compensation limit to €75,000.00. Given the significant increase in the maximum limit, if implemented it is intended that guidance will be provided to the WRC regarding the appropriate levels of award to be made. This is a very significant increase.

Conclusion  

The proposed Scheme, if passed as it is currently drafted, will bring substantial changes to the Irish employment equality law landscape, including potentially larger awards, a broadened scope of the application of the legislation in general, and longer time periods for employees to bring claims to the WRC. Employers should consider planning for the implementation of the Directive in Ireland and keep an eye on how the Scheme develops as it goes through the various stages of the legislative process.

Byrne Wallace Shields LLP

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