Extent of Protection
In Luxembourg, the principle of equal pay is only expressly provided in the context of equality between genders, in article L.225-1 of the Labour Code, with the provision that every employer ensures equal pay for men and women for the same work or for work of equal value.
In addition to these specific provisions regarding unjustified difference in salary between genders, the general anti-discrimination laws set forth in articles L-251-1 et seq., also apply in matters of salary. Therefore, unjustified differences in salary or professional advancement based on other discriminatory grounds such as religion, conviction or belief, disability, age, sexual orientation, real or assumed belonging to an ethnic group, nationality or union membership, can also be considered discriminatory actions. It is important to note that in Luxembourg, there is no general rule of “equal work = equal pay” meaning that except for discriminatory reasons, the employer remains free to negotiate salaries individually with each employee.
With regards to equal pay among genders, the Labour Code provides that any provision appearing, in particular, in an employment contract, a collective labour agreement or a company’s internal regulations and which, for one or more employees of one of the two sexes, a lower salary than that of employees of the other sex for the same work or work of equal value, is automatically null and void. The higher salary from which these latter employees benefit is automatically substituted for that which was included in the nullified provision.
According to article L.225-5 of the Labour Code, an employer who does not comply with these obligations is punishable with a fine ranging from €251 – €25,000. However, in the event of a repeat offense within a two-year period, the penalties may be increased to double the aforementioned maximum.
In current case law, the burden of proof in this matter is clearly defined. It is established case law, that the employee who considers himself/herself to be a victim of discrimination has the burden of proof that he/she received lower remuneration than that paid by the employer to his/her colleague of the other sex, and that he/she is in fact carrying out the same job or a job of equal value comparable to that performed by his/her reference colleague.
Further, there is a long standing precedent (case law) stipulating that, although the victim must first establish facts to substantiate the presumption that gender discrimination exists, one single fact is considered to be enough (Labour Court of Luxembourg, 11 December 2003, 5103/03). As soon as a person who considers himself/herself aggrieved by the failure to comply with the principle of equal treatment, establishes facts before a court or other competent body, which makes it possible to presume the existence of direct or indirect discrimination, the burden of proof lies on the defendant, meaning that they have to prove that there has not been a violation of the principle of equal treatment.
The employer then has the possibility not only of contesting that the conditions for the application of the principle of equal pay for male and female employees has been met in the present case, but also of asserting objective reasons that are unrelated to discrimination based on sex in order to justify the difference in the remuneration in question (Superior Court of Justice, 8th Chamber, 7 December 2015, 39457).
At this stage, there are no other legal requirements that exist in Luxembourg.