Equal work - different pay: is it always discrimination?
When two people in a company do the same job but are paid differently, the natural question is: is this legal? Is this situation already discrimination? Or does the employer have a legitimate reason for treating them differently?
Viktorija Dubovskienė, an attorney at AVOCAD, answers these topical employment issues by analysing both national labour law and the case law of the European Court of Human Rights.
According to the senior lawyer, the Labour Code (LC) stipulates that employers must ensure gender equality and not discriminate against employees on any grounds. The Court of Cassation has also clarified that any discrimination, whether direct or indirect, on grounds unrelated to the employee's abilities or statutory criteria, such as membership of a particular organisation, is prohibited.
The Labour Code stipulates that a worker's salary cannot be lower than what is laid down by law, collective agreements or the company's remuneration system. It also makes it clear that the system must be fair and ensure that workers are not discriminated against on grounds of sex or other grounds. Same work means the performance of work activities that are, according to objective criteria, identical or similar to other work activities, to the extent that the two can be interchanged without significant cost to the employer.
A systematic interpretation of the above-mentioned provisions of the LC means that the parties to an employment contract must lay down in the employment contract non-discriminatory rules for calculating wages, which establish equal pay for equal work.
However, the case law of the European Court of Human Rights shows that not all unequal treatment is discrimination. It is only recognised when there is no objective and reasonable explanation for such treatment. If an employee raises a reasonable suspicion of possible discrimination, then the burden of proving that the difference was legitimate lies with the employer, who has access to all the relevant data.
Viktorija Dubovskienė points out that the Supreme Court of Lithuania has examined the employee's complaint in this situation. It stated that the employee had been subject to unequal pay conditions for a certain period of time after the reorganisation, but that this temporary difference in remuneration was objectively justified - it was part of the reorganisation process in order to unify the pay system throughout the employer's company during the transitional period.
"In this case, workers were temporarily treated differently for the good cause of improving their situation. The public authorities decided to apply a transitional period during which salaries were equalised and increased", explains the lawyer.
To achieve this, interim compensatory measures (salary supplements) were applied and the system itself was converged faster than planned, i.e. within 7 months instead of 2 years.
The Court of Cassation noted that the temporary unequal pay was known in advance, the employee had been informed of it, had consented to it, and the differences were not discriminatory. The Court of Cassation emphasised that, according to the case-law of the European Court of Human Rights, where the aim is to improve the situation of all workers and the implementation of the restrictions is not contrary to the fundamental principles of human rights, such restrictions are acceptable.
Thus, according to the lawyer, it is not enough in each case to conclude on the face of it that a provision is discriminatory, but the context of all the circumstances and the ultimate true objectives of the action must be assessed.