Defence of rights
Member States shall ensure that, after possible recourse to conciliation, court proceedings for the enforcement of rights and obligations relating to the principle of equal pay are available to all workers who consider themselves wronged by a failure to apply the principle of equal pay. Such proceedings shall be easily accessible to workers and to persons who act on their behalf, even after the end of the employment relationship in which the discrimination is alleged to have occurred.
Procedures on behalf or in support of workers
Member States shall ensure that associations, organisations, equality bodies and workers’ representatives or other legal entities which have, in accordance with criteria laid down in national law, a legitimate interest in ensuring equality between men and women, may engage in any administrative procedure or court proceedings regarding an alleged infringement of the rights or obligations relating to the principle of equal pay. They may act on behalf of, or in support of, a worker who is an alleged victim of an infringement of any right or obligation relating to the principle of equal pay, with that person’s approval.
Right to compensation
1. Member States shall ensure that any worker who has sustained damage as a result of an infringement of any right or obligation relating to the principle of equal pay has the right to claim and to obtain full compensation or reparation, as determined by the Member State, for that damage.
2. The compensation or reparation referred to in paragraph 1 shall constitute real and effective compensation or reparation, as determined by the Member State, for the loss and damage sustained, in a dissuasive and proportionate manner.
3. The compensation or reparation shall place the worker who has sustained damage 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. Member States shall ensure that the compensation or reparation includes full recovery of back pay and related bonuses or payments in kind, 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.
4. The compensation or reparation shall not be restricted by the fixing of a prior upper limit.
Other remedies
1. Member States shall ensure that, in the case of an infringement of rights or obligations related to the principle of equal pay, competent authorities or national courts may, in accordance with national law, at the request of the claimant and at the expense of the respondent, issue:
(a)
an order to stop the infringement;
(b)
an order to take measures to ensure that the rights or obligations related to the principle of equal pay are applied.
2. Where a respondent does not comply with any order issued pursuant to paragraph 1, Member States shall ensure that their competent authorities or national courts are able, where appropriate, to issue a recurring penalty payment order, with a view to ensuring compliance.
Shift of burden of proof
1. Member States shall take the appropriate measures, in accordance with their national judicial systems, to ensure that, when workers who consider themselves wronged because the principle of equal pay has not been applied to them establish before a competent authority or national court facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no direct or indirect discrimination in relation to pay.
2. Member States shall ensure that, in administrative procedures or court proceedings regarding alleged direct or indirect discrimination in relation to pay, where an employer has not implemented the pay transparency obligations set out in Articles 5, 6, 7, 9 and 10, it is for the employer to prove that there has been no such discrimination.
The first subparagraph of this paragraph shall not apply where the employer proves that the infringement of the obligations set out in Articles 5, 6, 7, 9 and 10 was manifestly unintentional and of a minor character.
3. This Directive shall not prevent Member States from introducing evidential rules which are more favourable to a worker who institutes an administrative procedure or court proceedings regarding an alleged infringement of any of the rights or obligations relating to the principle of equal pay.
4. Member States need not apply paragraph 1 to procedures and proceedings in which it is for the competent authority or the national court to investigate the facts of the case.
5. This Article shall not apply to criminal proceedings, unless national law provides otherwise.
Proof of equal work or work of equal value
1. When assessing whether female and male workers are carrying out the same work or work of equal value, the assessment of whether workers are in a comparable situation shall not be limited to situations in which female and male workers work for the same employer, but shall be extended to a single source establishing the pay conditions. A single source shall exist where it stipulates the elements of pay relevant for the comparison of workers.
2. The assessment of whether workers are in a comparable situation shall not be limited to workers who are employed at the same time as the worker concerned.
3. Where no real comparator can be established, any other evidence may be used to prove alleged pay discrimination, including statistics or a comparison of how a worker would be treated in a comparable situation.
Access to evidence
1. Member States shall ensure that in proceedings concerning an equal pay claim, competent authorities or national courts are able to order the respondent to disclose any relevant evidence which lies in the respondent’s control, in accordance with national law and practice.
2. Member States shall ensure that competent authorities or national courts have the power to order the disclosure of evidence containing confidential information where they consider it relevant to the equal pay claim. Member States shall ensure that, when ordering the disclosure of such information, competent authorities or national courts have at their disposal effective measures to protect such information, in accordance with national procedural rules.
3. This Article shall not prevent Member States from maintaining or introducing rules which are more favourable to claimants.
Limitation periods
1. Member States shall ensure that national rules applicable to limitation periods for bringing equal pay claims determine when such periods begin to run, the duration thereof and the circumstances under which they may be suspended or interrupted. The limitation periods shall not begin to run before the claimant is aware, or can reasonably be expected to be aware, of an infringement. Member States may decide that limitation periods do not begin to run while the infringement is ongoing or before the end of the employment contract or employment relationship. Such limitation periods shall be no shorter than three years.
2. Member States shall ensure that a limitation period is suspended or, depending on national law, interrupted, as soon as a claimant undertakes action by bringing a complaint to the attention of the employer or by instituting proceedings before a court, directly or through the workers’ representatives, the labour inspectorate or the equality body.
3. This Article does not apply to rules on the expiry of claims.
Legal costs
Member States shall ensure that, where a respondent is successful in proceedings relating to a pay discrimination claim, national courts can assess, in accordance with national law, whether the unsuccessful claimant had reasonable grounds for bringing the claim and, if so, whether it is appropriate not to require that claimant to pay the costs of the proceedings.
Penalties
1. Member States shall lay down the rules on effective, proportionate and dissuasive penalties applicable to infringements of the rights and obligations relating to the principle of equal pay. Member States shall take all measures necessary to ensure that those rules are implemented and shall, without delay, notify the Commission of those rules and of those measures and of any subsequent amendment affecting them.
2. Member States shall ensure that the penalties referred to in paragraph 1 guarantee a real deterrent effect with regard to infringements of the rights and obligations relating to the principle of equal pay. Those penalties shall include fines, the setting of which shall be based on national law.
3. The penalties referred to in paragraph 1 shall take into account any relevant aggravating or mitigating factor applicable to the circumstances of the infringement, which may include intersectional discrimination.
4. Member States shall ensure that specific penalties apply in the case of repeated infringements of the rights and obligations relating to the principle of equal pay.
5. Member States shall take all measures necessary to ensure that the penalties provided for pursuant to this Article are effectively applied in practice.
Equal pay in public contracts and concessions
1. The appropriate measures that Member States take in accordance with Article 30(3) of Directive 2014/23/EU, Article 18(2) of Directive 2014/24/EU and Article 36(2) of Directive 2014/25/EU shall include 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.
2. Member States shall consider requiring contracting authorities to introduce, as appropriate, penalties and termination conditions ensuring compliance with the principle of equal pay in the performance of public contracts and concessions. Where Member States’ authorities act in accordance with Article 38(7), point (a), of Directive 2014/23/EU, Article 57(4), point (a), of Directive 2014/24/EU, or Article 80(1) of Directive 2014/25/EU in conjunction with Article 57(4), point (a), of Directive 2014/24/EU, contracting authorities may exclude or may be required by Member States to exclude any economic operator from participation in a public procurement procedure where they can demonstrate by any appropriate means an infringement of the obligations referred to in paragraph 1 of this Article, related either to a failure to comply with pay transparency obligations or a pay gap of more than 5 % in any category of workers which is not justified by the employer on the basis of objective, gender-neutral criteria. This shall be without prejudice to any other rights or obligations set out in Directive 2014/23/EU, 2014/24/EU or 2014/25/EU.
Victimisation and protection against less favourable treatment
1. Workers and their workers’ representatives shall not be treated less favourably on the ground that they have exercised their rights relating to equal pay or have supported another person in the protection of that person’s rights.
2. Member States shall introduce in their national legal systems such measures as are necessary to protect workers, including workers who are workers’ representatives, against dismissal or other adverse treatment by an employer as a reaction to a complaint within the employer’s organisation or to any administrative procedure or court proceedings for the purpose of the enforcement of any rights or obligations relating to the principle of equal pay.
Relationship with Directive 2006/54/EC
Chapter III of this Directive shall apply to proceedings concerning any right or obligation relating to the principle of equal pay set out in Article 4 of Directive 2006/54/EC.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
