Extent of Protection
Presently, offering unequal pay for work of equal value is a violation of (i) articles 7:646, 7:648 and 7:649 of the Dutch Civil Code, (ii) the Equal Treatment for Men and Women Act (in Dutch: “Wet gelijke behandeling van mannen en vrouwen”) and (iii) the General Equal Treatment Act (in Dutch: “Algemene wet gelijke behandeling”).
A legislative proposal on equal pay for women and men (in Dutch: “Wet gelijke beloning van mannen en vrouwen”) is pending in the House of Representatives. According to the explanatory memorandum, there is still a significant pay gap in the Netherlands. The Act is intended as an additional measure to be incorporated into the Dutch Equal Treatment Act.
Under existing legislation, the presumption of evidence to demonstrate unequal pay rests with the employee. It is up to the individual employee to demonstrate whether he/she may unjustifiably earn less than a colleague performing the same work. However, it can be difficult for the employee to acquire the relevant facts and figures. If the employer refuses to provide actionable data or impedes efforts to adjust salaries to achieve pay equity, the employee can initiate a procedure with the Courts.
Should the abovementioned Act enter into force, the burden of proof will shift from the employee to the employer. This will be structured according to a certification system. Large companies (with more than 250 employees) must obtain a certificate showing that they pay women and men equally, meaning that women and men in the same position and with the same working hours, receive equal pay. The certification will be granted by an independent body. If a company has more than 50 employees, they are required to provide access to anonymized records of the wages of employees who perform work of equal value within the enterprise, or in the absence thereof, work of nearly equal value, upon the request of an employee.
Lastly, individuals who suspect that they are not being paid an equal wage can file a complaint with the Netherlands Institute for Human Rights. Before an employee can submit a complaint to the Institute, he/she must first approach the employer with the complaint. The employer then has two months to act on the complaint. In cases wherein the employee works for a company that has not installed a procedure for complaints, the employee can immediately approach the Netherlands Institute for Human Rights.
The employee can submit a discrimination complaint to the Netherlands Institute for Human Rights. It is also possible to request an official opinion on the complaint from the Institute. In that case, a procedure for such complaints will be launched. This is only possible in discrimination cases. The Netherlands Institute for Human Rights assesses whether the discrimination complaint is justified on the basis of the legislation on equal treatment. Bear in mind however, that the judgments of the Institute are not legally binding.
In addition to the certification, the employer must provide information in the annual report on the extent of the differences in pay between female and male employees. This will only apply if the Act on equal pay for women and men is formally adopted. Per the proposed Act, the Minister of Social Affairs and Employment is given the legal task to inform the Dutch parliament, every two years, as to the developments concerning the pay gap in the Netherlands, what the expectations are, and which policies are being developed in this area to reduce the pay gap.