Equal pay regardless of gender is a "hot topic. In November 2022, among others, 'Jinek' paid attention to a female corporate lawyer who earned significantly less salary at her employer Wehkamp, than a male colleague in the same position. November 14 is the annual 'Equal Pay Day' in the Netherlands. This day calls attention to (un)equal pay for men and women. That same day, the 'Monitor Wage Differences Between Men and Women' was published, which showed that women on average earn 13% less per hour than men.
Minister Karien van Gennip announced in a letter to the House of Representatives that she wants to further address gender inequality in the labor market. In Europe, legislation on equal pay has also been struggling for some time. Pauline Demacker and Bas Blaauwhof explain recent developments regarding equal treatment regardless of gender in this article.
The 'Wehkamp case'
An example of unequal pay in practice is the "Wehkamp case. An employee joined Wehkamp in the position of company lawyer. Her starting salary was €4,400 gross per month. A male colleague, also a corporate lawyer, who joined Wehkamp a few months later, received a salary of €5,400 gross per month. There was no huge difference in experience or skill between the two. In addition, both employees performed the same work.
The Human Rights Council (CRM) ruled that the distinction between the two was not justified. Wehkamp had gone with the previous salary when grading the salary and felt that the male employee had negotiated better. The CRM considered that these are not valid grounds for different salaries for equivalent positions. This constitutes unjustified discrimination on the basis of gender. This provides grounds for the employee to claim damages for the underpayment of salary.
Van Gennip parliamentary letter
In her letter to the House of Represent atives, Van Gennip names a number of social issues that (seem to) influence gender (im)equality in the labor market. Among the causes she cites are:
- pregnancy discrimination,
- the large number of part-time workers;
- the wage gap; and
- the unequal distribution between men and women when it comes to caregiving responsibilities at home.
Van Gennip now wants to start a social dialogue to promote equal opportunities for women in the labor market. She wants to identify what is required of employees, employers and the government to achieve that goal. The dialogue will last until the end of 2024 and will also serve as input for ongoing government policy during that period. So it is quite conceivable that the Cabinet will take action to promote gender equality in the next two years.
The European wage transparency directive proposal
The letter is just a follow-up to a host of previous actions to address gender pay inequality. In late 2021, the Cabinet agreed to the orientation of a European directive proposal that aims at wage transparency and thus equality between men and women. This proposal includes (among other things):
- an award should be based on objective and gender-neutral criteria;
- an employer may not ask job applicants about salary with a previous employer; and
- employers should be transparent about pay as early as the application process .
Employers (100 or more employees) will also have a reporting requirement regarding the gender pay gap within the organization.
The European Parliament and the Council have yet to give final approval to the proposed directive. They have reached a provisional agreement. It will probably be several years before these rules will apply in the Netherlands.
Conclusion
The Cabinet - and Minister Van Gennip in particular - has been particularly active in recent years in promoting equality in the labor market. The parliamentary letter and earlier recent developments are a result of this. The dialogue that the minister wants to initiate should contribute to more equal opportunities for employees regardless of gender. It is therefore to be expected that new regulations promoting equality will be introduced in the near future.
Note: Van Gennip writes in the parliamentary letter that the cabinet is working on a broad approach aimed at the labor market shortage. We will of course keep you informed about this as well.
The Wehkamp case teaches that it is advisable to check whether there are any unjustified distinctions in pay within your organization, and to make adjustments where necessary. After all, it is already possible - even now unintentionally - to make unjustified distinctions in the remuneration of men and women.
Want to know how to legally avoid this unequal pay? Contact one of our attorneys employment law or fill out the form below. They will be happy to help you.
