"Women are entitled to the same wages for the same work"
"BAG sets milestone for real equal pay"
"The same wage is not a matter of negotiation"
Something like that, it rushed in the (digital) leaf forest. Was this finally the dam break for the right to pay? Are we now the contemporary witnesses* of the breakdown of another male domain? - Women can basically do everything and a lot better, only earn more, so they are often behind. Let's see. We are at least on the right track!
What happened?
With the judgment of February 16, 2023 (8 AZR 450/21; so far only published as a press release), the BAG decided that differences in earnings from women and men cannot be justified that the man had better negotiated or he was intended for a management position in perspective.
What was the basis of this decision?
An employee of a metal company in Meißen had sued. The company offered its EUR 3,500.00 gross monthly plus a success -dependent premium. The employee agreed, but later found that two male colleagues had significantly higher salaries than them. A colleague who was hired three months earlier and did the same sales in the company, earned around 1,000 euros more per month during the trial period. After the introduction of a collective agreement, the salary difference was still around 500.00 euros. The company gave the reason that the colleague had better negotiated.
The employee saw herself disadvantaged for her gender and complained of payment of the fee difference and adequate compensation according to the fee transparency law (EntgtraztG).
The employer justified the different salary height that the colleague had already negotiated a higher fee when hiring. Both the plaintiff and her colleague were offered a basic fee of EUR 3,500.00 gross during the hiring. The plaintiff accepted this. The colleague rejected it and called for a higher salary for a certain period of time. The employer met this claim. In addition, there was a later increase in salary by the colleague, which the employer justified that the colleague had been placed on the position of a retired and better -paid sales employee, which had already been promised to him when he was hired.
The lower courts dismissed the lawsuit. The LAG Sachsen was of the opinion that the salary difference was due to objective factors, since the higher content was necessary for the employer's interest in obtaining the employer when the employer, which is to comply with in the course of the acquisition of the employee, was objectively justified.
The BAG tipped this judgment and mostly agreed with the applicant.
If women and men are paid differently as in the negotiated case with the same work, this should justify the assumption of disadvantage due to gender. The employer should not be able to refute this presumption with the argument that the male colleague has negotiated a higher fee or had followed a better -reimbursed employee. The BAG therefore awarded the plaintiff the defended fee difference and also compensation of EUR 2,000.00.
What did it matter here?
In addition to information claims (§ 10 ff. EntgtranspG), the entigus transaction also grants employees a right to the same fee for the same or equivalent work without discrimination because of gender (Sections 3 Paragraph 1, 7 Entgtrazt). Both regulations have a mandatory character and immediate effect by justifying the right for individuals that the principle is ensured "the same fee for men and women with the same work". If the courts stipulate a violation of this principle, they must ensure the protection of the principle of equal treatment by granting the members of the disadvantaged group the same advantages as the relatives of the privileged group.
The burden of proof for the existence of discrimination against the remuneration due to gender basically affects those who believe and therefore complies with the elimination of discrimination.
If it is clear that an employee is paid for a lower remuneration than gender -different colleagues, although the same or equivalent work is done, the assumption of a disadvantage is assumed due to gender. In this case, the other party, i.e. the employer, bears the burden of proof that the principle of equal treatment has not been violated.
For the first time, the BAG expressed its decision of January 21, 2021 (8 AZR 488/19) on the handling of the Entgtransz. If an employee receives a smaller fee as employees of the opposite sex who do the same or equivalent work, this explains that the BAG believes that the disadvantage is assumed because of gender. The BAG sees the statement of the comparison fee as a median fee according to §§ 10 ff. Employees can therefore rely on this information in order to demonstrate the suspicion of the disadvantage because of gender. However, employers can refute this assumption.
In addition to the explanations that are expected by the employer to remedy the presumption of a disadvantage for gender, the BAG explains that the employer had to present and prove that the determined different remuneration by objective factors such as B. the service, which has nothing to do with discrimination based on gender, can be explained and that the unequal treatment is actually based on other reasons than the different gender of the workers. On criteria and factors that affect women more disadvantage than men in the result, a differentiation of wages can only be supported if they are due to the type of work and are related to the (legitimate) needs and goals of the company.
It remains to be seen how the BAG justifies this latest decision. The LAG Sachsen had each seen different reasons than the gender as a rash for unequal treatment, according to the colleague's refusal to work to be less than (opposite the plaintiff).
What can you say now?
For individual remuneration decisions, the employer should always use objective criteria based on a legitimate goal and that are suitable for achieving this goal.
Conclusion?
The BAG will hopefully answer the question of which criteria are objective to justify different remuneration with the same or equivalent work. It may also make a statement on how the labor market, performance and work result-related criteria mentioned in Section 3 (3) sentence 2 of the DEGEGPRANSPG can also be classified. So far, the BAG only gave the service as a positive example.
In view of this, the dam break for the right to remuneration can still come. We stay tuned ...
*For reasons of better readability, the male form is used for personal names and personal words. Corresponding terms generally apply to all genders within the meaning of equal treatment. The shortened language form has only editorial reasons and does not include a rating.
