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. The implementation deadline for this is June 7, 2026. It is currently unclear whether this deadline will be met.
Remedies
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.
When the above-mentioned Act enters into force, the burden of proof will shift from the employee to the employer. All employers must implement a system for job evaluation and classifications based on objective criteria. These systems for job evaluation and classification must include categories of positions that the employer considers to be of equal value. Furthermore, employees are entitled to request and receive written information about (i) their individual pay level (including the criteria used to determine it) and (ii) the pay levels broken down by gender for categories of employees performing equivalent work. The employer is obliged to provide this information within two months of receiving a request from the 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.
Enforcement/Litigation
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.
Other Requirements
In addition, when the above-mentioned Act will come into force, employers with 100 or more employees will be required to report to a monitoring body, yet to be established, on wage differences within their organisation by employee category. The frequency of wage reporting depends on the number of employees in the organisation. Lastly there may also be strict requirements for mandatory wage evaluation. Wage evaluation is mandatory if there is a wage gap of more than 5% in a category of employees, where this gap cannot be justified on the basis of objective and gender-neutral criteria and the wage gap has not been closed or remedied within six months.
