Different earnings for the same position, i.e. wage discrimination

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One of the basic principles of the labor law is equal treatment in employment (Art. 112 of the Labor Code). Wage discrimination is a form of employment discrimination and is a violation of Art. 183c of the Labor Code, according to which employees are entitled to equal remuneration for the same work or for work of equal value, and a broad definition of remuneration should be adopted, according to which it covers all its components - regardless of their name and nature, as well as other work-related benefits granted to employees both in cash and in kind.

The Labor Code in art. 183c also defines the criteria for work of equal value, which are:

  • comparable professional qualifications (confirmed by relevant documents or practice and professional experience),

  • comparable liability,

  • comparable effort.

The principle of equal treatment of employees implies the prohibition of discrimination, i.e. unjustified differentiation of the situation of people with specific characteristics. Based on Article. 113 of the Code of Civil Procedure, it is forbidden to discriminate against employees on the basis of such characteristics as: gender, age, disability, race, religion, nationality, political beliefs, trade union membership, ethnic origin, religion, sexual orientation, as well as employment for a fixed or indefinite period either full-time or part-time, but remember that this is an open directory. It is worth noting that the concepts of discrimination and unequal treatment are not the same - discrimination is a specific form of unequal treatment of employees. In this case, it is possible to identify a specific feature that is the cause of different treatment, but when such a reason cannot be established, the principle of equal treatment is broken, but there is no discrimination.

This division is important due to various sanctions provided for by the legislator. The consequence of violating the principle of equal treatment is that the employee has a claim to supplement the underestimated benefits to a higher level. However, in the event of discrimination, the employee has the right to demand additional compensation in the amount not lower than the minimum remuneration for work, the upper limit of which is not defined by law.

What is pay discrimination?

Wage discrimination is an unjustified differentiation of remuneration for the same work due to a specific characteristic of an employee. An example of wage discrimination may be lower salaries for women performing the same job as men, failure to grant a bonus to a part-time worker - if the only reason is part-time work - or failure to provide a company car to a woman despite being employed in a position where male employees are shared company cars

Wage discrimination or always?

It should be emphasized that there is no prohibition to differentiate the rights and obligations of employees, but the criteria used by the employer must be objective and fair. In art.78 § 1 of the Labor Code, examples of premises were indicated, which the legislator considered as objective reasons for differentiating the remuneration of employees employed in similar positions, and these include in particular: the type of work performed, the qualifications required for its performance, as well as the quantity and quality of work performed. Therefore, when assessing whether an employer violates the provisions on non-discrimination, it is important to analyze the case in many ways.

Pursuant to Art. 183c of the Labor Code, in the case of differentiation in remuneration of employees performing the same work, the employer should prove that he was guided by objective reasons. It should be remembered that the employer's reference to various professional qualifications and length of service is connected with the necessity to prove that they were important in the performance of the tasks entrusted to a given employee (judgment of the Supreme Court of February 22, 2007, I PK 242/06).

Remuneration secret policy and wage discrimination

Many employers, in order to avoid accusation of wage discrimination, introduce an earnings confidentiality clause in employment contracts or work regulations, which forbids informing other employees about the amount of their earnings, even under the threat of dismissal - which is illegal. For example, in the judgment of May 26, 2011 (file no. II PK 304/10), the Supreme Court ruled that disclosure to other employees of the data covered by the so-called remuneration confidentiality clause in order to prevent violation of the principle of equal treatment and manifestations of employee wage discrimination cannot constitute a reason justifying the termination of an employment contract without notice.

The principle of confidentiality of earnings is intended to prevent competitors from obtaining information on the level of earnings in a given workplace, and in fact prevents employees from accessing information on what salaries are received by their colleagues in similar positions.

According to the opinion of the Inspector General for Personal Data Protection, an employee may disclose his earnings if he suspects that his company is subject to wage discrimination. It should also be remembered that the information about the amount of individual remuneration is the personal data of the employee, not the employer, so ultimately the employee has the right to dispose of them.

How to protect yourself from wage discrimination?

An employee who suspects that his employer discriminates against him in terms of wages may refer the case to court or file a complaint with the National Labor Inspectorate, which is obliged to verify this suspicion. In the event of a court dispute, if an employee accuses the employer of violating the provisions on the prohibition of discrimination, he should indicate the cause or facts that may make it plausible (cf. judgment of the Supreme Court of October 10, 2012, file reference number I PK 82/12; judgment of the Supreme Court of 3 June 2014, file reference number III PK 126/13), and then the employer is burdened with the burden of proof that the differentiation of the situation of employees was caused by objective reasons. If there are no such reasons, the disproportions are classified as a violation of equal treatment and are not connected with the obligation to provide compensation.

Does the wage discrimination apply to contracts of mandate?

It should be remembered that from January 1, 2011, also persons working under civil law contracts may claim compensation in the field of unequal treatment in employment. Such a power is granted to them by the Act of December 3, 2010 on the implementation of certain provisions of the European Union in the field of equal treatment.

Thus, not all pay inequalities, even if they apply to those in the same position, constitute discrimination. Differentiating pay due to quality, quantity or work commitment is a lawful activity due to objective and justified criteria. A key element of the dispute over pay discrimination is the comparison of the scope of duties of employees who, in the opinion of the suing employee, earn better than him. It may be helpful for both parties to publish a salary table, a schedule or a method of calculating salaries and rules of promotion. Employees who know where their salary comes from, what it is determined and how much people in similar positions earn will feel fairly treated, which will minimize the risk of being accused of discrimination. On the other hand, employers will find it easier to demonstrate the objectivity of the differences in the level of remuneration in the event that a court dispute cannot be avoided.