Does my employer have something against me? The employee's new right to information

A difference in pay often feels personal. “Why does my colleague earn more than I do?”, “Why was their salary increased while mine was not?”, “Does my employer simply not like me?” Until now, an employee could often do little more than speculate. The new pay-transparency rules are designed to change precisely that.

Directive (EU) 2023/970 does not give employees a right to ask whether their employer likes them or what personal opinion the employer holds of them. It provides something considerably more useful: an opportunity to examine whether different treatment in relation to pay can be explained by objective reasons.

Employees have the right to request written information about their own individual pay level and about the average pay levels, broken down by sex, for the category of workers performing the same work as them or work of equal value to theirs. The employer must provide the information within a reasonable period and in any event within two months. In addition, the employer must inform employees annually of this right and of the steps they must take to exercise it.

This does not, however, create a right to request a particular colleague’s payslip. The purpose is different: to provide employees with sufficient information to understand whether the same rules are being applied to them as to comparable workers.

More importantly, the employer must make the criteria used to determine pay, pay levels and pay progression easily accessible. Those criteria must be objective and gender-neutral.

The question therefore gradually changes. Instead of asking, “Does my manager have something against me?”, an employee can ask a much more specific question: “What are the rules, and have they been applied to me in the same way?”

Different pay is not prohibited in itself. One employee may have more experience, higher qualifications, greater responsibility, different performance or different working conditions. A problem arises when the employer cannot link the difference to objective, neutral and consistently applied criteria.

What does this mean for the employer in practice?

The most sensible preventive measure is for the employer to ask itself the question before an employee does: “If I had to explain tomorrow why these two people receive different remuneration, would I have an objective and documented explanation?”

This requires a review not only of basic salaries, but also of bonuses, supplementary payments, pay increases and progression opportunities. Criteria such as professional experience, qualifications, responsibility, complexity of work, results achieved or specific working conditions may justify a difference. Formulations such as “at the manager’s discretion” are significantly more problematic where they are not supported by predetermined and verifiable indicators.

The second important step is to identify comparable workers correctly. The same job title is not sufficient, but different job titles do not preclude a comparison either. The Directive requires the value of work to be assessed using objective criteria, including skills, effort, responsibility and working conditions. Up-to-date job descriptions and a sound internal job-classification system therefore cease to be merely administrative documents and become instruments of legal protection.

The third step is documenting decisions. If a pay increase is awarded because an employee has assumed additional duties, achieved stronger results or obtained a qualification, the reason should remain capable of being established afterwards. Several years later, the oral explanation that “they were simply the better employee” is unlikely to substitute for a consistently applied appraisal system.

This is particularly important for smaller employers. The absence of an obligation to submit periodic statistical reports below a particular workforce threshold does not exempt an employer from the principle of equal pay or from the individual’s right to information. On the contrary, comparisons between individuals are often much easier in a small team.

Finally, transparency also has procedural significance. Where an employee establishes facts from which pay discrimination may be presumed, the burden shifts to the employer to prove that there has been no discrimination. Where certain transparency obligations have not been met, the Directive further strengthens the employee’s protection.

The new rules therefore do not give employees a right to supervise their employer’s personal relationships. They do something more significant: they restrict the possibility for personal attitudes, subjective judgment or bias to remain concealed behind opaque pay decisions.

For a responsible employer, the question is no longer merely, “Am I paying fairly?” The right question is: “Can I explain and prove why I pay in this way?”