Wages in Poland will be open and employers will have to disclose differences in wages earned by women and men – does this mean new duties for employers?

On 15 March the deadline for the presentation of opinions on the EU directive on strengthening the principle of equal pay for men and women equal work or work of equal value through pay transparency and enforcement mechanisms.

Pursuant to Art. 1, the directive is to provide for minimum requirements to strengthen the application of the principle of equal pay for men and women for equal work or work of equal value, as well as to strengthen a non-discrimination rule, in particular through transparency and effective enforcement mechanisms.

The wage transparency is the main assumption of the Directive. In accordance with the proposed Article 5 of the directive, a candidate for a job will know a pay applicable to the job they apply for: “Persons applying for a job have the right to be informed by their future employer about the initial level or range of wages applicable to a given job based on objective criteria that are indifferent in terms of gender”. Such information must be included in the job announcement or provided to the candidate still before the commencement of a qualification interview. At the same time, the future employer will not be able to ask the candidate about their previous earnings.

Another important issue stipulated in the directive is Article 7, based on which a person already employed with the company will have the right to obtain information about earnings of their colleagues. This article assumes that each employee will have the right to be informed about the level of their individual earnings and an average level of earnings by gender with regard to categories of employees performing equal work or work of equal value in comparison to that employee’s work.

Apart from the above obligations, the draft directive also imposes other new obligations on employers. Employers employing at least 250 employees will have to report on wage scales at their companies by women and men. In the event the reporting on wages reflects a difference in an average level of wages between female and male employees of at least 5% in any category of employees and the employer fails to justify such a difference in the average wages with objective factors that are indifferent in terms of gender, the employer will have to conduct an assessment of wages in cooperation with representatives of its employees.

In the event an employee who incurs a damage as a result of the violation of any rights or obligations connected with the principle of equal pay for men and women for equal work or work of equal value, they will have the right to bring claims and obtain a full compensation or remedy for such a damage. The compensation or remedy must include the recovery of outstanding wages and corresponding bonuses or benefits in kind, compensation or remedy for lost opportunities and moral prejudice, as well as a right to default interest.

What is also important, the cost of court proceedings aimed at enforcement of all rights and obligations connected with the principle of equal pay for men and women for equal work or work of equal value will pay the employer, whatever the outcome.

In the court proceedings, an employee filing a claim against the employer will also be a more privileged party because the burden of proof that pay discrimination has not taken place will rest on the employer. In addition, all doubts, if any, will be resolved to the benefit of the claimant.

The designed amendments are, for sure, favourable to employees and in particular female employees. They provide, not only, for the transparency of wages, but also create a real chance for equalling wages for women and men.

The largest trade unions in Poland are also of the opinion that the amendments are positive. While, entrepreneurs have some concerns because, indubitably, the draft directive imposes new obligations on them.

Marta Strzecha-Bociąga, Attorney-at-law