We all know this famous principle “equal pay for equal work”. Following this rule, it is legally possible to compare the salaries of your employees. You must ensure compliance with the laws and regulations in force. So what is this principle and how does it apply?
Respect for a principle
With your status, you once had the power to freely determine the remuneration of your employees, unlike today. As part of the fight against discrimination, Community law has imposed equal pay between men and women, reinforced in recent years by new European directives on pay transparency. Through the famous “equal pay for equal work”, we note the reference to the principle of equal pay. However, there are cases where, for a given job, the salaries are not the same.
The Labor Code protects employees against differences in treatment based on sex, ethnicity, nationality, or race. This does not mean that, as an employer, you are obliged to pay two employees performing the same work the same.
However, the law requires you to pay employees in the same situation in the same way.
To fall into this category, your employees must perform the same work or work of equal value. If employees do not perform work of equal value, then the law considers that they are performing functions of unequal value.
The law qualifies work that requires a comparable set of criteria as “equal value”:
- Equivalent physical or nervous loads.
- Professional knowledge validated by a title or diploma;
- Professional practices and abilities resulting from acquired experience;
- Similar responsibilities;
The “equal pay for equal work” rule only applies to employees working within the same company. In other words, this principle does not apply when it comes to employees of different companies, regardless of whether they are subject to the same collective agreement.
Eligible criteria for the difference in salary for the same functions
If other criteria diverge, an identical title of functions and truly identical functions do not necessarily allow one to benefit from the same remuneration. Some criteriahe objectives can in fact justify a difference in remuneration, namely:
- Training and diplomas if they are of a different degree or from distinct sectors relevant to the position;
- Individual performances objectively evaluated;
- Professional experience acquired with the employer in question or with another employer;
- Seniority, provided it is included in the base salary and not taken into account during a special bonus;
- The nature of the work carried out (different tasks or particular responsibilities);
- Responsibilities assigned;
- The quality of work measured with objective, transparent and measurable criteria;
- The labor market (a proven shortage of candidates for a specific profile can offer the employer the possibility of paying certain employees better than others);
- Family situation (the allocation of certain benefits linked to family responsibilities, if it is provided for by collective texts);
- An atypical career path, such as the reclassification of an employee to a position that corresponds to their state of health, which is generally done without changing their salary and which can thus lead to salary disparities.
Unjustified criteria for a difference in remuneration for identical functions
However, other criteria cannot justify a difference in remuneration.
The socio-professional category (executive versus non-executive on functions of equal value) does not allow any disparity. The same goes for different legal statuses, such as:
- private sector employees,
- seconded civil servants,
- permanent contracts,
- fixed-term contracts or intermittent workers.
Additionally, the date of hire does not validate any salary discrepancy. This remains true whether you recruit the employee before or after the entry into force or denunciation of a collective agreement.
Only one exception exists: this deviation becomes legal if the measure compensates for specific and temporary damage arising from this agreement.
This principle takes effect regardless of the type of remuneration. Thus, the base salary and any other benefits paid directly or indirectly by the employer are taken into account. Whether it is bonuses, restaurant vouchers, mutual insurance or even the number of days of leave, everything is taken into consideration in the overall comparison of two remunerations.
Inequalities between men and women
Even today, inequalities between men and women persist, particularly in terms of employment, but also in terms of remuneration. INSEE (National Institute of Statisticstick and Economic Studies) regularly highlights these inequalities which are present on the professional level, despite the tightening of legal obligations (such as the annual publication of the Professional Equality Index).
In the labor market, women occupy a generally less favorable position than that of men. Often in a situation of underemployment, we note that the number of women working part-time compared to that of men remains multiplied approximately by 4. The number of children to raise greatly varies the nature of their position: the more children they have to support, the more they risk occupying a part-time position or seeing their career development freeze.
Concerning remuneration, there is a persistent gap compared to the remuneration of men. Women receive on average a salary approximately 15 to 20% lower than that of men over their entire career, all socio-professional categories combined, a gap which is narrowing but remains marked for strictly equal positions and skills.
Recourse to trial and methods of proof
If one of your employees believes that they are the victim of unequal treatment, the burden of proof is shared. The employee must first provide factual elements suggesting the existence of inequality (for example, prove that he performs the same work or work of equal value as one or more colleagues, and that he receives lower remuneration).
By virtue of your status as manager, it is then your responsibility to provide proof that this difference in treatment is based on objective, real elements that are unrelated to any discrimination.
Be careful of the subjective nature: The “involvement” or perceived commitment of an employee is not considered by judges as an objective criterion. Likewise, a reduced presence in one’s position evaluated in a purely quantitative manner (for example linked to protected absences such as illness or parenthood) cannot justify a reduction in remuneration if it is not at fault.
It is entirely possible for an employee to make a request to the judge (often in summary proceedings) in order to require the employer or a third party to produce confidential evidence, such as anonymized pay slips from comparison colleagues, to verify the actual remuneration paid in the company. In the event of abstention or refusal by a party to comply with a decision ordering the production of these documents, the judge can draw all the legal consequences and judge according to his personal conviction.
