Directive (EU) 2023/970 on pay transparency

Member States shall ensure employers have pay structures ensuring equal pay for equal work or work of equal value, with objective, gender-neutral criteria (including skills, effort, responsibility and working conditions) for determining the value of work, and tools or methodologies to assess and compare the value of work.

• A gender-neutral job evaluation and classification system
• Objective criteria for comparing the value of work

• Pay structures with no gender-neutral evaluation criteria
• Subjective or opaque grading

Member States shall take appropriate measures to ensure that, in the performance of public contracts or concessions, economic operators comply with their obligations relating to the principle of equal pay (and may require gender pay-gap reporting or penalties).

• Public-procurement clauses requiring equal-pay compliance by contractors

• Public contracts with no equal-pay safeguards

Workers and their representatives shall be protected against any adverse treatment or adverse consequence as a reaction to a complaint or to proceedings aimed at enforcing the principle of equal pay.

• Protection against victimisation for raising or supporting equal-pay claims

• Detrimental treatment of workers who assert equal-pay rights

Where pay reporting reveals a difference in average pay level between female and male workers of at least 5 % in any category that the employer cannot justify on objective, gender-neutral criteria and has not remedied within six months, the employer shall conduct, in cooperation with workers' representatives, a joint pay assessment.

• A joint pay assessment conducted with worker representatives where the 5% trigger applies
• Plan to remedy unjustified pay differences

• No joint pay assessment despite an unjustified >=5% gap
• Failure to involve worker representatives

Member States shall provide support, in the form of technical assistance and training, to employers with fewer than 250 workers and to the workers' representatives concerned, to facilitate compliance with the Directive.

• Use of available technical assistance/training for smaller employers

• No awareness of available support measures

Applicants for employment shall have the right to receive from the prospective employer information on the initial pay or its range (based on objective, gender-neutral criteria) for the position; employers shall not ask applicants about their pay history, and vacancy notices/job titles shall be gender-neutral and recruitment processes non-discriminatory.

• Pay range disclosed in vacancy notices or before interview
• Recruitment policy banning pay-history questions
• Gender-neutral job titles

• No pay range provided to applicants
• Asking candidates about pay history

Employers shall make easily accessible to workers the criteria used to determine pay, pay levels and pay progression, and those criteria shall be objective and gender-neutral (employers with fewer than 50 workers may be exempt from the pay-progression criteria requirement).

• Documented, accessible objective and gender-neutral pay-setting and pay-progression criteria

• No published pay-setting/progression criteria
• Criteria that are not gender-neutral

Workers shall have the right to request and receive in writing information on their individual pay level and the average pay levels, broken down by sex, for categories of workers performing the same work or work of equal value; employers shall inform all workers annually of this right and provide the information within two months.

• A process to respond to worker pay-information requests within two months
• Annual notice to workers of the right to information

• No mechanism for workers to obtain comparative pay data
• Failing to issue the annual notice

Information and reporting provided under the Directive shall be made accessible to persons with disabilities and take into account their particular needs.

• Accessible formats for pay information and reports

• Pay information not accessible to workers with disabilities

Employers shall report on the gender pay gap in their organisation according to size-based thresholds and frequencies (employers with 250+ workers annually; 150-249 every three years; 100-149 every three years), covering the overall and median gaps, the gaps in complementary/variable components, and the gaps by category of worker.

• A gender pay-gap report meeting the size-based threshold and required metrics
• Submission to the designated monitoring body

• No gender pay-gap report despite meeting the worker threshold
• Report missing required metrics (median, variable components, by category)

To the extent that information provided under the transparency and reporting measures (Articles 7, 9 and 10) involves the processing of personal data, it shall be provided in accordance with Regulation (EU) 2016/679; personal data shall not be used for any purpose other than implementing the equal-pay principle, and pay information shall not lead to disclosure of an identifiable co-worker's pay other than as provided.

• GDPR-compliant handling of pay data used for transparency/reporting
• Safeguards preventing disclosure of an identifiable co-worker's pay

• Using pay data beyond the equal-pay purpose
• Disclosing identifiable individual pay without basis

Member States shall, in accordance with national law and practice, take adequate measures to ensure the effective involvement of the social partners, including by discussing and concluding measures to address pay discrimination.

• Evidence of social-partner involvement in equal-pay measures

• No engagement of social partners where required

Member States shall ensure that, after possible recourse to conciliation, judicial procedures for the enforcement of the rights and obligations relating to the principle of equal pay are available to all workers who consider themselves wronged by a failure to apply equal pay.

• Accessible judicial/complaint procedures for equal-pay claims

• No effective route for workers to enforce equal-pay rights

Associations, organisations, equality bodies and workers' representatives may engage in judicial or administrative procedures to enforce equal-pay rights on behalf of or in support of a worker, with the worker's approval.

• Recognition of representative bodies acting for workers in equal-pay procedures

• Barring representative or collective enforcement

Workers who have suffered harm as a result of an infringement of any right or obligation relating to the principle of equal pay shall have the right to claim and obtain full compensation or reparation, including full recovery of back pay and related bonuses or payments in kind, and compensation for lost opportunities and non-material damage.

• Mechanism providing full compensation incl back pay for equal-pay breaches

• Capped or partial remedies that do not make the worker whole

Competent authorities or national courts shall be able to order, in accordance with national law, the cessation of the infringement and measures to ensure the application of the principle of equal pay, including structural or organisational measures.

• Availability of injunctive/structural remedies

• No power to order cessation or structural remedies

Where workers establish facts from which it may be presumed there has been direct or indirect pay discrimination, it shall be for the employer to prove that there has been no such discrimination; where an employer failed to comply with the transparency obligations, the burden shifts to the employer in the relevant proceedings.

• Process recognising the reversed burden of proof in equal-pay proceedings

• Placing the burden of proof on the worker
• Non-compliance with transparency obligations undermining the defence

In assessing whether workers are performing the same work or work of equal value, the assessment shall not be limited to situations in which female and male workers work for the same employer but may extend to a single source establishing the pay conditions.

• Comparator methodology consistent with the single-source principle

• Artificially narrow comparator scope

Member States shall ensure that, in proceedings, national courts can order the employer or a third party to disclose relevant evidence in their control, including confidential evidence subject to appropriate safeguards.

• Procedures for court-ordered evidence disclosure with confidentiality safeguards

• No mechanism to compel disclosure of pay evidence

Member States shall ensure limitation periods for bringing equal-pay claims are at least three years and do not begin to run before the claimant knows, or can reasonably be expected to know, of the infringement.

• Limitation periods of at least three years with appropriate start date

• Limitation periods shorter than three years or starting prematurely

Member States shall ensure that claimants who prevail are not, in principle, required to bear the costs of proceedings in a manner that would make enforcement excessively difficult; courts may award costs against unsuccessful claimants only in limited circumstances.

• Cost rules that do not deter meritorious equal-pay claims

• Cost exposure that makes enforcement excessively difficult

Member States shall lay down rules on effective, proportionate and dissuasive penalties (including fines) applicable to infringements of the rights and obligations relating to the principle of equal pay, taking into account aggravating factors such as repeated infringement.

• A penalties regime for equal-pay infringements (incl fines)

• No effective sanctions for equal-pay breaches