Extent of Protection
Irish law on equal pay has its origins in EU law, where ‘equal pay for equal work’ is one of the EU’s founding principles enshrined in the Treaties. The Employment Equality Acts prohibit direct and indirect pay discrimination on any of the nine protected grounds under the Employment Equality Acts. Indirect pay discrimination can be objectively justified, but direct discrimination generally cannot be. In order to succeed with an equal pay claim, the complainant must identify an actual comparator employed by the same or an associated employer who does ‘like work’ but is treated differently (e.g. paid a greater amount) on the basis of a discriminatory ground. There are various grounds of defence to unequal pay e.g. it is open to an employer to show that the difference of treatment is not based on a discriminatory ground but is based on some other valid non-discriminatory reason.
Equal pay claims (on both the gender and non-gender grounds) are investigated at first instance by the WRC or by the Labour Court (on appeal). For equal pay claims on the gender ground only, a claimant may in the alternative bring their claim to the Circuit Court.
A claim to the WRC or the Circuit Court for equal pay must be made within 6 years of the disparity in pay. The WRC (or the Labour Court, on appeal) may provide for up to 3 years’ arrears of remuneration, an order for equal remuneration from the date of the referral and/or an order a specified course of action. A determination of the Labour Court may be appealed by either party to the High Court on a point of law.
The Circuit Court may provide for up to six years arrears of remuneration, an order for equal remuneration from the date of referral and/or an order a specified course of action. In gender discrimination cases, a claim may be made directly to the Circuit Court which can, in theory, award unlimited compensation in such cases. The WRC or the Circuit Court may order interest on compensation in gender cases.
A complainant in an equal pay claim has the right to seek material information from an employer e.g. about the remuneration of comparable employees in order to decide whether or not to pursue a claim or to assist with the effective presentation of a claim.
In 2022, the Irish Human Rights and Equality Commission published a ‘Code of Practice on Equal Pay’, which was the first of its kind in Ireland to address the topic of equal pay. It contains guidance on how to eliminate pay inequality and resolve pay disputes. While the code is not legally binding and does not impose legal obligations on employers, it is admissible as evidence before the civil courts, the WRC and the Labour Court.
In general, equal pay claims have not arisen with any considerable frequency in Ireland in relation to the nine protected grounds (other than perhaps the age ground, where there has been some litigation on the issue of equal pay and seniority and severance pay).
Employers with 250+ employees (on the relevant ‘snapshot date’ in June of the reporting year) must publish gender pay gap reports within six months of the relevant ‘snapshot date’. The reporting obligation, which was required for the first time in 2022, will be extended to employers with 150+ employees by 2024, and 50+ employees by 2025. It is envisaged that there will be an online reporting system for the 2023 reporting cycle, where reports will be uploaded and accessed publicly. While there are no financial penalties for non-compliance nor can employees be awarded compensation for any breaches of the gender pay gap reporting obligations, employees can bring a claim before the WRC against their employer for failure to comply with their legal obligations. The WRC may order the employer to take a specified course of action to comply with its legal obligations. This creates a reputational risk for the employer.