Compensation without an upper limit (Article 16)
Workers who have suffered damage as a result of an infringement of the principle of equal pay can claim full compensation. It should place them in the position they would have been in without the discrimination.
This includes in particular back pay with related bonuses and payments in kind, compensation for lost opportunities and non-material damage, and interest on arrears. A predetermined upper limit is not permitted.
Burden of proof on the employer (Article 18)
Where workers establish facts from which pay discrimination may be presumed, the employer must prove that there has been no direct or indirect discrimination.
If the employer has not met its transparency obligations under Articles 5, 6, 7, 9 or 10, it bears the burden of proof unless the infringement was manifestly unintentional and minor. Complete documentation of criteria, information responses and reports is therefore essential.
Comparison and limitation periods (Articles 19 and 21)
The comparator does not have to work for the same employer if pay conditions can be attributed to a single source, nor at the same time. Where no real comparator exists, statistics or a hypothetical comparison are also admissible.
The limitation period for claims is at least three years. It starts only when the person knows, or can reasonably be expected to know, of the infringement and is suspended or interrupted by a complaint or proceedings.
Fines and other penalties (Article 23)
Member States must lay down effective, proportionate and dissuasive penalties that include fines; their amount is set by national law. Specific penalties apply to repeated infringements, and aggravating factors such as intersectional discrimination can be taken into account.
The actual level of fines is set by national laws. In Austria, according to ORF, the labour ministry’s draft provides for administrative fines of up to EUR 60,000 for repeated breaches.
Public procurement (Article 24)
In public contracts and concessions, companies must comply with equal pay obligations. Contracting authorities may exclude companies from procurement procedures if they breach pay transparency obligations or have an unjustified pay gap of more than 5% in a category of workers.
What employers should take from this
Once national laws apply, liability risk does not arise only with the first report but with every information request and every job posting. It makes sense to:
- Document pay criteria and job evaluation before the first requests arrive.
- Answer information requests on time and archive the responses.
- Review pay gaps regularly and record justifications or measures.
- Log changes to pay and evaluations in a traceable way.
Frequently asked questions
Is there an upper limit on compensation?
No. Article 16 rules out a predetermined upper limit. Compensation covers, among other things, lost pay including bonuses, lost opportunities, non-material damage and interest on arrears.
Who has to prove what in a dispute?
Workers must establish facts from which discrimination may be presumed. The employer must then prove that there was no discrimination. If it breached transparency obligations, it bears the burden of proof unless the breach was manifestly unintentional and minor.
How long can claims be brought?
Member States must provide a limitation period of at least three years, which starts only once the infringement is known.
Sources
Not legal advice. The content is based on Directive (EU) 2023/970 as of the update date shown; specific obligations follow from national transposition.