On 17 May 2023, Directive (EU) 2023/970 of the European Parliament and of the Council of 10 May 2023 to strengthen the application of the principle of equal pay for equal work or work of equal value between men and women through pay transparency and enforcement mechanisms (hereinafter referred to as “ the Directive ”) has been published in the Official Journal of the European Union.The Directive will come into force on the twentieth day after its publication in the Official Journal of the European Union.

This new directive aims to combat pay discrimination (including intersectional discrimination) and help to bridge the gap between pay for men and women in the European Union.

• To whom does the Directive apply ?

The Directive applies to employers in the public and private sectors, as well as all workers who have an employment contract or an employment relationship, including part-time workers, workers on fixed-term contract, workers in management positions and those with an employment contract or an employment relationship with a temporary agency.

It should be noted that the Directive also applies to applicants for jobs.

• Pay transparency

The Directive is designed to establish pay transparency, including in particular prior to employment.

Indeed, applicants for a job will be entitled to receive information from the employer about the initial pay or pay range. This information may be provided by way of a job vacancy notice published prior to the job interview, or in any other way.

It should be noted that the Directive stipulates that the employer can no longer ask applicants for their pay history during current or previous employment relationships.

Employers will have to give their workers the criteria used to determine pay and pay progression.

Workers will thus be entitled to ask for and receive, in writing, information about their individual pay level and average pay levels.

In addition, the Directive also stipulates that Member States will have to put in place measures to prohibit contractual terms that restrict workers from disclosing information about their pay.

• Reporting on pay gaps between female and male workers

The Directive stipulates that Member States will have to make sure that employers provide information about their organisation regarding, among other things, the gender pay gap.

This information will be provided by employers according to a timetable that depends on the size of the company, as follows:

• by 7 June 2031, every three years, for employers with 100 to 149 workers;
• by 7 June 2027, every three years, for employers with 150 to 249 workers;
• by 7 June 2027, then every year, for employers with 250 workers or more.

• Shift of the burden of proof

If workers consider themselves wronged by a failure to apply the principle of equal pay and establish the facts from which it may be presumed that there has been direct or indirect discrimination, it will now be the employer’s responsibility to prove that there has been no direct or indirect discrimination in relation to pay.

• Deadline for transposing the Directive

Member States have until 7 June 2026 at the latest to transpose into national law the provisions of the Directive, which does not directly apply until that date.