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Action for equal pay – Information on comparative pay – Presumption of discrimination on grounds of sex

Federal Labour Court, Erfurt, Germany

Press Release No. 1/21

21 January 2021

If a woman brings an action for equal pay for equal work or work of equal value (Article 157 TFEU, § 3.1 and § 7 EntgTranspG), the fact that her pay is lower than the comparative pay of the male comparator (median pay) disclosed by the employer pursuant to §§ 10 et seq EntgTranspG regularly gives rise to the presumption – which can be rebutted by the employer – that the discrimination in pay is due to gender.

The plaintiff is employed by the defendant as a department head. In August 2018, she received information from the defendant pursuant to §§ 10 et seq. EntgTranspG, which showed, among other things, the comparative pay of the male heads of department employed by the defendant. In accordance with the provisions of section 11 (3) of the EntgTranspG, this was stated as the „statistical median extrapolated to full-time equivalents“ of the average monthly basic pay above the collective agreement and the allowance above the collective agreement (median pay). The comparative pay was higher than the plaintiff’s pay for both the basic pay and the bonus. With her action, the plaintiff asserted a claim against the defendant – insofar as it is of interest for the appeal proceedings – for payment of the difference between the basic remuneration paid to her as well as the allowance paid to her and the higher median remuneration notified to her for the months August 2018 to January 2019.

The Labour Court upheld the claim. The Regional Labour Court amended the judgment of the Labour Court on the appeal of the defendant and dismissed the action. It held that there was insufficient circumstantial evidence within the meaning of § 22 AGG to support the claim. It held that there was insufficient evidence within the meaning of § 22 of the General Equal Treatment Act (AGG) to justify the presumption that the plaintiff had been disadvantaged in her pay because of her sex.

The plaintiff’s appeal before the Eighth Senate of the Federal Labour Court was successful. On the grounds given by the Regional Labour Court, the action could not be dismissed. The information provided by the defendant showed the comparative pay of the relevant male comparator. According to the provisions of the EntgTranspG, the disclosure of the comparative pay as median pay by an employer is also the disclosure of the relevant comparator, because either a concrete or a hypothetical employee of the other sex receives this pay for the same or equivalent work. The plaintiff suffered a direct disadvantage within the meaning of § 3.2 sentence 1 of the Equal Treatment Act compared to the male comparator notified to her by the defendant. The plaintiff experienced a direct disadvantage within the meaning of § 3.2 sentence 1 of the EntgTranspG compared to the male comparator notified to her by the defendant, because her remuneration was lower than the remuneration paid to the male comparator. Contrary to the assumption of the Regional Labour Court, this circumstance also justifies the presumption – which can be rebutted by the defendant – that the plaintiff experienced the disadvantage in pay „because of gender“. On the basis of the findings made by the Regional Labour Court so far, the Senate could not decide whether the defendant, who has the burden of proof in this respect, has rebutted this presumption in accordance with the requirements of section 22 of the General Equal Treatment Act, interpreted in conformity with Union law. At the same time, the parties must be given the opportunity to make further submissions. This led to the annulment of the contested decision and the remittal of the case to the Regional Labour Court for a new hearing and decision.

Federal Labour Court, Judgment of 21 January 2021 – 8 AZR 488/19 –

Previous instance: Lower Saxony Regional Labour Court, judgment of 1 August 2019 – 5 Sa 196/19 –