The EU directive on pay transparency raises many concerns, primarily because its implementation may complicate Polish laws, which so far have not regulated the issue of pay equality in the same way that gender pay has long been thought of in Europe and around the world. The latest parliamentary draft law partially implementing the directive shows that it is high time we shifted the perception of equality.

Key to understanding the ambitious goal of the directive – and thus the possible effects of its implementation in Poland as early as 2026 – is to consider the concept of “equal work” or “work of equal value.” In theory, the matter is simple and the principles uncontroversial: According to the directive, equal pay will be due for work that is “equal” or “of equal value,” and the value of the work will be determined on the basis of non-discriminatory, objective criteria. In practice, however, it may turn out that the application of this logic in, for instance, a large retail company may require not only the equalization of wages of, for example, male cashiers and female cashiers, but also of female cashiers and male storekeepers. How is this possible? A look at how other countries have approached pay equality is instructive.

Great Britain

The Equality Act 2010 provides that men and women are to receive equal pay for equal work. This includes when a claimant can show that a comparator of the opposite sex is doing work that is “like work,” “work rated as equivalent” or “work of “equal value.” Work will be of equal value when it is equal in terms of the demands placed on the claimant and their comparator, such as, for example, effort, skill and decision-making.

This means that “work of equal value” for the same employer (or associated employer) can be work that is completely different at first glance. One of the most interesting rulings that compared the value of work in very different positions is a case relating to Asda supermarket. Here, female employees (employed as shop floor workers) demanded pay equal to that earned by workers in distribution warehouses (who were predominantly male). Asda argued that such a comparison of positions was impossible as the distribution and retail operations were fundamentally different due to the different nature of the work performed, as well as the fact that their stores and distribution centers are managed by different departments, and the employees' pay rates were determined using a different method. The courts did not accept this argument, stating that it was possible to compare such groups even though they were at different locations.  Utilizing the work of experts and job assessment schemes, a tribunal recently found that 12 of the 14 lead claimants carried out roles of equal value to at least some or all of the distribution center roles.  Subject to any appeal, the case will now move to the next stage to determine whether the reason for the difference in pay was based on sex.

United States

In its approach to understanding work of equal value, Great Britain is not alone. The same is true among some states in the United States. Until a few years ago, almost all states applied equal pay rules based on the federal Equal Pay Act of 1963. Within the past 10 years, however, several states have enacted laws allowing comparisons between increasingly broad groups of workers, including those doing “generally similar” or “substantially comparable” work and making this comparison independent of many previously relevant factors, such as geographic location. California, Illinois, and New Jersey, for example, prohibit differential treatment of workers doing “substantially similar work”; Oregon and Maryland prohibit differential treatment between workers doing “work of a comparable nature”; Washington prohibits differences in pay between workers who are “similarly employed.” In practice, this makes it possible to compare, for example, the work of a cook and a janitor at a school, or a number of different, seemingly disparate, office jobs in different divisions, departments, units and locations of the same company.

In the context of EU regulations awaiting implementation by Poland, the key to solving the conundrum of who to compare with whom will probably be the ability to divide employees into different categories, using the same objective criteria. According to the directive, a “category of employees” is a group distinguished by the employer in a non-arbitrary manner based on the non-discriminatory and objective, gender-neutral criteria, such as skills, effort, responsibility and working conditions, and, if appropriate, any other factors that are relevant to the specific job or position. But how will a Polish employer be able to independently but correctly establish such criteria, and how will they then be applied to fit their industry?

Spain

In 2021, Spain prepared such evaluation criteria with a practical mechanism for employers to apply them. The catalog included, among other things, the nature of the functions and tasks actually assigned to the employee, the educational, professional or training requirements required to perform them, external factors closely related to the performance of the tasks, or the working conditions in which such activities are performed. Of particular interest, the Spanish Ministry of Labor, in cooperation with the Ministry of Equality, created a practical job evaluation tool (Herramienta de Valoración de Puestos de Trabajo) for employers. The tool takes the form of an Excel file accompanied by a practical guide. The employer merely completes and evaluates all the factors for each job position. Objective criteria are plentiful – for example, an employer can enter information on the factor “constant standing and uncomfortable positions,” while assessing its frequency and intensity.  The result of using the tool is that each position can be assigned to a specific category.

Leaving aside the real assumptions and plans for the implementation of the directive in Poland, it is worth considering what the EU regulations really aim at – and, looking at the practices of our closer and farther neighbors for guidance, which will allow for an honest and serious discussion about equalizing wages between women and men. Comparing a female cashier to a male cashier is no longer enough if it turns out that men employed in a warehouse earn significantly more than their female colleagues serving customers in a store.