Labour law and HR consulting Equal remuneration in light of the Supreme Court ruling and upcoming regulations
What is pay discrimination?
Pursuant to Article 183b §1 of the Labour Code, it is discrimination to treat an employee less favourably with regard to remuneration for work or other terms and conditions of employment for reasons deemed unauthorised. These include, among others, gender, age, nationality, religion or fixed-term or part-time employment.
Importantly, a pay differential in itself does not necessarily imply discrimination, as long as it is justified by objective criteria such as the employee's qualifications, work experience, scope of duties or performance.
Supreme Court ruling in case ref. II PK 82/12 - important conclusions for employers
In the present case, an employee in the position of electrician claimed damages from the employer for breach of equal treatment in employment. He claimed that he had been discriminated against by the employer by being paid a lower salary compared to another employee in the same job position. The employee pointed out that the employer, although it argued the differences with specific circumstances, did not provide evidence to support its position.
The Supreme Court, in the ruling in question of 2 October 2012, emphasised that the differentiation of remuneration of employees in the same jobs must be based on objective reasons, such as differences in qualifications, experience or quality of work. In the case at hand, the lack of such justification resulted in the employer's actions being considered a violation of the principle of equal treatment and the employee being awarded remuneration.
The Supreme Court noted that, in pay discrimination disputes, the employee must make two main points of probability:
- the occurrence of pay inequality - an employee is paid less than other employees doing work of equal or equal value,
- prohibited differentiation criterion - differences in pay are based on grounds deemed to be discriminatory, e.g. gender, age or nationality.
Only after the employee has presented such circumstances does the burden shift to the employer to show that the unequal treatment was justified by objective reasons.
How to avoid allegations of pay discrimination?
First and foremost, employers should regularly review employees' pay for equality. Arbitrary decisions on pay changes can potentially lead to pay discrimination against employees.
A major revolution in this area will be brought to us in 2026, when the so-called EU Pay Transparency Directive will come into force in Poland. It is the aforementioned directive that will require employers to classify jobs and set salary ranges for each category. One thing is certain - from that point onwards, remuneration structures will make it clear to employees which jobs are, according to the employer, jobs of equal value and what pay spreads apply to each category. This, in turn, will enable employees to verify the criteria adopted and assess whether the criteria applied are legitimate.
In looking after organisational culture, compliance and, consequently, minimising the risk of pay discrimination allegations, employers should already:
- examine the applicable employee documentation - the components of employee remuneration outside the remuneration regulations are often described in employment contracts or pay policies
- develop or update the remuneration structure - in order to comply with legislation and meet the requirements of the Pay Transparency Directive,
- regularly review the remuneration structure - it is worth checking that salaries comply with the principle of equal treatment, especially in the case of promotions or organisational changes,
- make employees aware - clear remuneration policies, training and communications to employees reduce the risk of misunderstandings and disputes.
Summary
Pay discrimination is a serious breach of employment law that can lead to significant legal and financial consequences for the employer. It is crucial that employers act transparently, basing their decisions on objective criteria.
The Supreme Court's ruling in case II PK 82/12 emphasises that compliance with employment law and the application of objective remuneration criteria are key to preventing allegations of discrimination.
The topic seems particularly relevant in view of the upcoming changes - from 2026, employers will have to have pay policies with strictly defined elements, which will certainly contribute to greater scrutiny by employees.
You can find out more about the Pay Transparency Directive and your obligations under it by contacting our labour law team.
