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Resolve Annual Conference 2018 Session Two: Employment Law Update Samus Given Arthur Cox 22 November 2018 I. Gender Pay Gap/ Wage Transparency Measure 2 2018 Bill Gender Pay Gap Information Bill

2018: General Scheme 26 June 2018 (part of Programme for Government) Bill by year end says Government 3 Gender Pay Gap Definition Difference in average hourly pay of men and women in workplace. Does not necessarily indicate discrimination/unequal pay for equal work. Identifies imbalance of gender

representation at senior (male dominated) and lower paid levels (female dominated). 4 Gender Pay Gap League Table 13.9% reported gender pay gap in Ireland (2014). 16.7% EU28 figure (2014). 18.1% UK. Ireland is in place 11/28. USA/Canada 18%. 5

Why Gender Pay Gap Reporting? Measurement and reporting will drive change? Name and shame? Recruitment/retention impact? Government contracts? (Scottish Government . . .) 6 2017 UK Regulations The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017. GB (not UK). > 250 employees.

Private/voluntary sectors. Publish (website/3 years) annually from 4 April 2018 i. Difference between mean and difference between median hourly rates/ bonuses of males and females. ii. Proportions of males/females paid bonuses. iii. Proportions of males/females in each of the employers four quartile pay bands. Median is point at which 50% of the relevant population (males/females) earn more and 50% earn less. Mean is average pay point for each of the two relevant populations (males/females). Enforcement by EHRC. 7 Other countries GPG Reporting

Regime Australia private employers with 100 or more employees must submit annual report to Workplace Gender Equality Agency & private employers with 500 or more employees must meet certain minimum standards for gender equality. Austria private employers with 150+ employees must prepare report showing gender pay differences. Belgium - employers with 50 or more employees must draft a report on salary structures every 2 years. Denmark employers must send information on pay to Statistics Denmark, who provides employers with gender segregated pay statistics. France employers with at least 50 employees must complete a comparative male female status report every year and must implement a gender equality action plan following consultation. Italy private and public employer with 100+ employees must report on pay and other employment conditions.

Sweden mandatory gender pay reporting regime was first introduced in 1994 employers with at least 25 employees must conduct a review of pay and other employment conditions every 3 years. 8 Irish Law Anti-Discrimination Pay Act 1974. Employment Equality Acts 1988 to 2015. Issues: need for a complainant; need for a comparator; need for like work; grounds other than gender defence; A gender pay gap might suggest but does not necessarily mean that the employer is acting

unlawfully. 9 Irish Bills - 2017 A. Irish Human Rights and Equality Commission (Gender Pay Gap) Information Bill 2017 (PMB). 10 Irish Bills 2018 B. Gender Pay Gap Information Bill 2018 (General Scheme of Bill)

Public, private and voluntary sectors: Year 1: Year 3: Year 5: > 250 employee s > 150 employee s

> 50 employee s Empower Minister to make regulations. UK disclosures plus: median/mean for part-time/temporary contract pay for men/women; benefits in kind proportions too; report by job classification.

Enforcement 11 Inspectors. IHREC/Circuit Court. Employee complaints to WRC/Labour Court. UK Experience 2018 Reports 78% of employers have gender pay gap in favour of men.

14% of employers have gender pay gap in favour of women. 8% of employers have no gender pay gap. 18.1% overall mean pay gap(median 9.7%). 12 UK Experience Examples (male): Investment Banks Mean % HSBC

59 29 55.5 36.4 48 43.5 Median % Ryanair

71.8 67 Easyjet 51.7 45.5 TUI 56.9 47.3

Goldman Sachs Barclays Airlines Retail 13 Median % Mean % Mean % Median %

Coast 71 40 Karen Millen 56 49 Walgreen Boots 49

33 UK Experience Criticisms of the UK Reporting Regime: Data frequently misunderstood and misrepresented. Even if correctly interpreted, raw data is often to crude to allow for comparison. Requirement to measure pay gaps across entire organisations (rather than between comparable roles within organisations), renders majority of findings meaningless. Conducting comparisons between organisations difficult because of the differences in the way in which each organisation reported. Concerns expressed that incentives created by the reporting measures will not lead to more women being hired into senior roles but to fewer women being hired into junior or lower paid roles regardless of their qualifications to narrow the pay gap. 14

Remediation Can employers take affirmative action to advance the underrepresented gender? 15 Remediation Article 157.4 TFEU: With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific

advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers. 16 Remediation Section 24(1) of the Employment Equality Act (1998) (As Amended) states that the nondiscrimination provisions are: without prejudice to any measures (a) maintained or adopted with a view to ensuring full equality in practice between men and women in their employments; and (b) providing for specific advantages so as to make it easier for an under-represented sex to pursue a vocational activity or to prevent

or compensate for disadvantages in professional careers. 17 Remediation The Irish Courts have not considered the application of Section 24(1) in detail. However, the provisions of the relevant EU Treaties (A157.4 TFEU) and Directives on which Section 24(1) is based have been analysed by CJEU. The following principles have been developed.

18 Remediation (i) 19 Positive action permitted is only if it is demonstrable that one gender is underrepresented and, once a balance is achieved, the permitted measures will no longer be permissible. Remediation

(ii) As the ability to take positive action is an exception to the general rule that genders should be treated equally, it will be construed strictly by the Courts. 20 Remediation (iii) Practices that have been found to be unlawful include: granting absolute and unconditional priority to a gender.

21 Remediation (iv) 23 Practices that have been found to be lawful include: a) rules which state that in the event of equal suitability, a female candidate will be appointed unless reasons specific to the male candidate tilt the balance in his favour; b) providing increased educational opportunities for women/reserving half of

all vocational training slots for women; c) giving preference to female employees in the allocation of nursery places. Are you ready? Next Steps? 24 II GDPR Data Breach Notification Obligations 25

What is a personal data breach? A breach of security leading to the accidental or unlawful destruction, loss, alteration unauthorised disclosure of or access to, personal data transmitted, stored or otherwise processed. 26 Mandatory Notification Obligations 27 Art. 33 GDPR

Art. 34 GDPR Notification to competent supervisory authority Communicatio n to affected data subjects Article 33: Notification of Breach to DPC When is notification required? Without undue delay and, where feasible, not later than 72 hours

from becoming aware (comply or explain). 28 Article 33: Notification of Breach to DPC When is notification not required? Where data breach unlikely to result in a risk to rights and freedoms of natural persons. 29 Timing: Becoming aware A29WP : a controller should be

regarded as having become aware when the controller has a reasonable degree of certainty that a security incident has occurred that has led to personal data being compromised Focus prompt action to investigate incident to determine if personal data been breached Notification 72

3.00pm Friday Initial investigation period can take place without being 3.00pm regarded as aware Thursday(? ) More detailed investigation can 30follow initial notification urs o

h 3.00pm Monday Becoming Aware Initial investigation period Internal report / Alert/detection escalation What to record? Causes of the breach

Causes Description of the event Personal data/systems affected Effects and consequences of the breach Who was affected? In what ways? Remedial action taken Immediate: to contain breach Future: to prevent recurrence Reasons for decisions taken (WP29 recommendation) Record reasons supporting risk-assessment Rec. 85: unless the controller is able to demonstrate the breach is unlikely to result in a risk it should be report. Record decision not to

notify SA. 31 Article 34 Communication to data subjects 1. When is communication required? When data breach is likely to result in a high risk to rights and freedoms of natural persons. | 32 Article 34 Communication to data subjects 2. Information to be communicated

At least nature, DPO name, likely consequences, measures taken/proposed to mitigate A29 also suggests informing of SA contact & specific advice to protect themselves (e.g. reset password, cancel card). | 33 Article 34 Communication to data subjects 3. Contacting the affected individuals Directly (in most cases), should not contain other information, via an

appropriate (uncompromised!) channel, effectively, accessible in alternative formats. | 34 Article 34 Communication to data subjects 4. Timing Without undue delay as soon as reasonably feasible and in close cooperation with SA. A29WP suggestion may be best to notify SA in first instance.

| 35 GDPR - Data Breach Notification Obligations 2,500 breach notices since GDPR on 24 May 2018. Within 2 months of GDPR, DPC received approx. 50% of the total 2017 breach notices. Compliance burden presenting a real operational challenge. 36 .

Liability - potential fines of up to 20,000,000 or 4% of global turnover or 10,000,000 or 2% of global turnover, depending on seriousness and nature of breach. For further information, please contact: Samus Given Arthur Cox Ten Earlsfort Terrace Dublin 2 Ph: 01-9201210 [email protected]

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