Workplace battle of the sexes – discrimination and how to legally level the playing field

April 2018

In light of the #MeToo movement and the outcome of the gender* pay gap reporting, we are all familiar with headlines such as “Gender discrimination”, “Gender inequality, “Gender pay gap” and “Gender quotas”. The Employment Equality Acts 1998-2015 (the “Acts”) prohibit discrimination in the workplace on the ground of gender, amongst others, and enunciates the principle of equal remuneration for ‘like’ work between the genders. A gender pay gap does not necessarily denote discriminatory pay. It is evident however, that some businesses in Ireland may be falling foul of this requirement, as our national gender pay gap stands at 13.9% (according to Eurostat as of 2014). There was a widely reported disparity by our national broadcaster, RTÉ, who in 2014 paid Bryan Dobson, the male co-host of “Nine O’Clock News”, €60,000 – €80,000 more than that of his female co-host Sharon Ní Bheoláin. Mr. Dobson is quoted as having said he “found it hard to see the justification for the difference”.

There is a growing demand both globally and locally, not just for the ideal of equality between genders in the workplace, but the practical implementation of it. Iceland, to meaningfully tackle the gender pay gap, has introduced government certification of equal pay policies for businesses with over 25 employees; those failing to demonstrate equal pay will be subject to fines. The UK has introduced mandatory gender pay gap reporting for businesses with over 250 employees, and a similar scheme may be introduced in Ireland. Here we look at discrimination in the workplace on the ground of gender and ways in which businesses may legally redress the balance.

Discrimination and ‘like’ work

S.6 of the Acts prohibits both direct or indirect discrimination in the workplace. Discrimination is defined as when;

“a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the [protected] grounds”.

Specifically, S. 8 sets out that an employer may not discriminate against a person on the (in this case gender) ground regarding its:

Access to employment
Conditions of employment
Training or experience for or in relation to employment
Promotion or re-grading; or
Classification of posts

Seemingly neutral rules that in practice prefer one of the genders are generally discriminatory. For example, if an employee were to get a benefit (such as a bonus) for participating in a work “rugby event”, the likelihood is that it would be taken up by more male employees and in practice, may discriminate against female employees. Or, if training or work experience is offered more often to male employees but not female employees (or vice versa), and this training later qualifies that employee for a promotion – this may amount to discrimination. Discrimination may also be established where men and women are paid differently for “like work” – the same, similar or work of equal value.

Businesses who wish to take steps to achieve gender equality, such as introducing unqualified gender quotas and the promotion of women above men or vice versa, must do so carefully as the measures they take may fall within the definition of discrimination. While such policies can be classed as “positive discrimination”, it is nevertheless still discrimination and is therefore unlawful, except where allowed by the Acts.

Where positive discrimination is allowed

S.26 of the Acts allows employers to provide benefits to women in respect of pregnancy, maternity or adoption, that would ordinarily be classed as discrimination. Hence the finding by the Workplace Relations Commission (“WRC”), that it was not discriminatory for an employer to refuse to pay a male employee’s salary during his statutory two-week Paternity Leave, where the employer’s Maternity Leave policy paid female employees their full salary during their statutory Maternity Leave in An Area Manager v A Transport Company ADJ-0000577.

While discrimination is unlawful, the Acts do however allow what is known as “positive action for equal opportunities”.

What is positive action?

If your company wishes to help break the ‘glass ceiling’ and ensure gender equality, S.24 of the Acts allows employers to take measures in their businesses to ensure “full equality in practice between men and women in their employments”. These practices may:

Make it easier for the under-represented sex to pursue their career; or
Prevent or compensate for disadvantages in professional careers.

What are examples of positive action measures in practice?

One of the easiest, and cost effective, ways of employers to begin addressing gender issues within their business is to raise awareness and provide staff and management training. Many businesses have already set up employee assistance programmes which provide supports to all employees, and there is also the emergence of female mentoring programmes (where the female is the underrepresented gender) and supports for employees returning from maternity/adoptive leave to assist their return to work.

As females are usually (but not always) the primary carer in families (both for children and elderly/sick parents), flexibility around working hours and working from home can also be considered. Businesses may adopt a “core hours policy” whereby decision-making meetings are held between the hours of 10am-3pm to involve those employees who avail of flexible working hours.

To address the balance from the ground up, hiring committees should try to ensure they have a balance of both men and women (which is generally required in any event), as should decision-making committees. Employers may consider a childcare subsidy (so long as it is equally applied to all genders who have primary care of children) and may introduce a policy of prioritising promotions of the underrepresented gender within the business, so long as the employee in question has equal qualifications and merits to the other gender.

What are the risks?

Employment equality claims are not like other employment claims; an employee does not have to have any length of service with an employer prior to taking a claim unlike other aspects of employment law. Further, people who are not employees but are working as contractors for a business also come within the scope and protection of the equality legislation – something employers should be aware of. Claims taken under the Acts may attract high awards:

Under the Acts, an employee may take a claim for gender discrimination to the WRC within 6 months (extended to 1 year in certain circumstances) of the alleged discrimination. The WRC may make awards up to 2 years’ salary and the WRC may also order re-instatement or re-engagement of the employee.
An avenue that is often overlooked, is that an employee may take a gender discrimination claim (regarding equal pay and or equal treatment) to the Circuit Court. The Circuit Court is not limited by its ordinary jurisdiction – currently €75,000 except in personal injury cases – in making an award and may order compensation and/or arrears of wages for up to 6 years prior to the date of making the claim.

Employers should be mindful in ensuring compliance with its requirements under equality legislation. If an internal review identifies a gender pay gap, or gender inequality at higher levels of the company, the business may already be exposed to the risk of an equality claim. Taking measured steps now to redress the balance would be advisable. If you need any assistance in this area, please do not hesitate to contact Marie Claire Scullion or Whitney Moore’s employment team.

*Please note that for the purposes of this article, gender is as between man and woman as set out in s. 18 of the Employment Equality Acts. This article does not constitute legal advice.

For more information, please get in touch with your usual Whitney Moore contact, Marie Claire Scullion or any member of our Employment, Pensions and Immigration team.