Strengthening gender pay equality:  The 2023/970 Directive

Three key articles for the Netherlands highlight the Directive’s objectives:

Article 7: Right to information

This provision empowers employees 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 as them or work of equal value to theirs. All employers must annually inform all employees of their right to receive such information and provide the information within a reasonable period of time, but in any event within two months from the date on which the request is made. 

Article 16: Right to compensation

This article strengthens compensation requirements for victims of pay discrimination. It mandates that employees who suffer from gender-based pay violations can claim full compensation or reparation for all damages, including back pay, related bonuses, compensation for lost opportunities, non-material damage, any damage caused by other relevant factors which may include intersectional discrimination, as well as interest on arrears. 

The compensation must be comprehensive and shall not be restricted by the fixing of a prior upper limit, aiming to place the affected employee in the position in which that person would have been if he or she had not been discriminated against based on sex, or if there had been no infringement of any of the rights or obligations relating to the principle of equal pay.

Article 18: Shift of burden of proof

Under this article, if workers who consider themselves wronged because the principle of equal pay has not been applied to them, the employer must prove that there has been no direct or indirect discrimination in relation to pay. 

Additionally, if an employer fails to meet the transparency obligations set out in the directive, the burden of proof shifts to the employer which must prove that there has been no such discrimination; this eases the process for employees to claim their right to equal pay. This shift not only facilitates employees’ claims but also encourages employers to adhere to the Directive's transparency requirements.

Overall, Directive 2023/970 aims to ensure fair pay practices by increasing transparency and accountability, thus reinforcing gender pay equality across the EU.

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Maaike Koot is a lawyer at TK and part of the international corporate employment law team. Maaike advises on reorganisation and dismissal, (collective change of) employment conditions, sickness and reintegration, temporary employment law and management agreements.