Pay transparency: paying fairly is no longer enough, you have to prove it

What really changes: from complying to proving it

Equal pay for equal work has been in European law since the Treaty of Rome in 1957. No employer disputes it. The practical problem is different: when someone suspects they are paid less because of their sex, they almost never can prove it, because they have no visibility of what anyone else earns.

Directive (EU) 2023/970 attacks precisely that asymmetry. It sets no pay scales and mandates no raises: it redistributes the information. Candidates will know the range before they negotiate, workers can ask about average levels for their role, and the employer must publish its own gap figures on a fixed cycle.

The side effect is what matters to anyone running an HR function: everything that used to be explained in conversation now has to be evidenced in data. "She earns more because she has more experience" is a reasonable answer in a meeting; in a pay transparency file it is a claim that needs a written evaluation criterion, applied the same way to everyone, and demonstrable.

So although the rule is an employment law rule, the project turns out to be about data and traceability — the same pattern we saw with working time recording rules: the obligation is not hard to understand, it is hard to evidence when the information is scattered across payroll, emails and spreadsheets.

The six obligations that land on HR

In short, with the article of the directive alongside so you can check them:

1. Pay range before hiring (Art. 5). Applicants must know the initial pay or the pay range for the role before the interview, through the vacancy notice or otherwise. Job titles and recruitment processes must be gender neutral.
2. No questions about pay history (Art. 5). Asking what a candidate currently earns stops being acceptable. The logic is obvious: if the new salary is anchored to the old one, any inherited gap follows the person from employer to employer.
3. Pay and progression criteria made accessible (Art. 6). How pay is set, how it rises and how people are promoted stops being tacit knowledge and becomes information available to the workforce.
4. The right to ask, the duty to answer (Art. 7). Any worker may request in writing their individual pay level and the average levels, broken down by sex, for those doing the same work or work of equal value. The answer has a deadline: two months. And confidentiality clauses preventing workers from disclosing their own pay are void.
5. Gender pay gap reporting (Art. 9). On a cycle set by headcount: overall gap, median gap, share of variable pay and distribution by quartiles.
6. Joint pay assessment (Art. 10). Triggered when an unjustified 5% difference appears in any category, with workers' representatives inside the process.

Who reports, and from when

The Article 9 timeline is staggered by headcount. These are the European dates; each member state may tighten them in its transposition, never loosen them:

Read that last row carefully. The absence of an EU reporting duty below 100 workers does not put smaller employers outside the directive: the right to ask, the ban on pay history questions, the pay range in vacancies and the nullity of pay secrecy clauses have no headcount threshold.

National baselines differ too. In Spain, for instance, Royal Decree 902/2020 already requires every employer, whatever its size, to keep a pay register with averages and medians broken down by sex. Whoever keeps that alive and accurate starts halfway there.

The 5% rule: when the joint assessment kicks in

Article 10 is the mechanism that turns information into action. It is triggered when three conditions coincide:

• The reported information shows a difference of at least 5% in the average pay level between women and men in any category of workers doing the same work or work of equal value.
• The employer does not justify that difference on objective, gender-neutral criteria.
• It has not been remedied within six months of the information being reported.

A joint pay assessment then has to be carried out with workers' representatives: analyse the pay structure of that category, identify the causes of the difference and adopt corrective measures with follow-up.

Two nuances change the risk calculation. First: the threshold applies per category, not to the company average. An impeccable overall gap can coexist with one skewed category, and it is that category that triggers the mechanism. Second: the key words are not "5%", they are "not justified". A difference explained by seniority, performance or qualifications — with written criteria applied consistently — requires nothing. The same difference with no documented criterion does.

Which is why the useful work is not chasing a number, but making sure every difference has a criterion behind it that you can show.

Burden of proof: why this is not a reporting project

If you keep one idea from this article, keep this one. Article 18 maintains and reinforces the rule that where a worker establishes facts from which pay discrimination may be presumed, it is for the employer to prove there was none — and the employer's position weakens where it has failed its transparency obligations.

In practice, the defence is not about good faith. It is about being able to reconstruct who set each pay level, on what criterion, when, and with whose approval. That is a documentation problem, exactly as in any other area where the party who decides is the party who must prove.

It is the same logic that makes a working time inspection turn on the record rather than on the intention to comply, as covered in the guide to time tracking rules.

National baselines: what you may already have

Several member states already had pay reporting rules before the directive, and the directive raises the bar on top of them rather than replacing them. Spain has a mandatory pay register for all employers and a pay audit for those required to have an equality plan; Germany has had an information right under its pay transparency act since 2017; France publishes an annual professional equality index; Italy requires a biennial personnel report from larger employers and has a voluntary gender equality certification.

What is genuinely new almost everywhere:

• Pay information before hiring and the ban on asking about previous salary, which hit the recruitment process directly.
• The individual right to request information with a response deadline, which requires a procedure rather than goodwill.
• Periodic publication of the gap with quartile detail and variable pay.
• The joint assessment as the automatic consequence of a threshold, not a management decision.

One point worth being precise about: the transposition deadline expired on 7 June 2026 and several member states had not completed it when this article was published. That delay does not move the European reporting dates, and "there is no national text yet" should not be confused with "there is nothing to prepare yet".

How Dokuflex helps: the trail only exists if the process runs inside

Dokuflex does not run payroll and does not replace your employment lawyers. What it adds is the layer that is usually missing: making sure people decisions happen inside a process that leaves a trail, instead of in an email thread nobody will be able to reconstruct two years from now.

• Every pay decision becomes a case. A hire, a review or a promotion runs as a low-code BPM workflow with mandatory fields: category, criterion applied, amount, who proposed and who approved. The justification stops being a memory and becomes a field.
• The response procedure, modelled. An Article 7 request can enter as a task with a deadline, an owner and an alert before the two months run out, exactly like any other workforce request in leave and time off. Anything with a legal deadline should not live in an inbox.
• Live documentation with access control. Job evaluation, pay policy, equality plan and pay register, versioned in the document management system, with role-based permissions and evidence of who accessed what — this data is particularly sensitive and access to it must be provable too.
• Structured data before the report. If category, sex, allowances and variable pay live as structured case fields rather than as columns in a different spreadsheet each quarter, calculating averages, medians and quartiles stops being a project and becomes a query.

Put differently: pay transparency is defended with the same raw material as any other duty to evidence something — process, deadline, owner and trail. Anyone who already has that for time recording or contract signing has it for this as well.

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What to do this quarter

Six tasks you can close without waiting for your national text:

1. Review the job classification. Make sure job evaluation criteria exist in writing, are gender neutral and are applied the same way at every site. It is the foundation: without comparable categories there is nothing to compare.
2. Consolidate the full pay data. Base, allowances, variable, benefits in kind. The gap usually hides in the variable, not in the base.
3. Run a dry calculation. Averages and medians by category and sex, with quartiles. Not to publish it, but to know today which categories are approaching 5% and to have a genuine six months of room.
4. Fix recruitment. Pay range in the vacancy, no pay history questions, neutral job titles. It is the cheapest thing to change and the most visible externally.
5. Build the response procedure. Who receives the request, who calculates, who signs, and on what internal deadline — better one month than two, to leave slack.
6. Review contracts and policies. Remove pay secrecy clauses that stop employees disclosing their own pay, because they will not hold.

If step three reveals that gathering the data takes two weeks of manual work, you have found the real project — and it is probably the same one solved by getting document management in order: putting people processes somewhere they leave a trail.

Frequently asked questions

Sources

• Directive (EU) 2023/970 of the European Parliament and of the Council of 10 May 2023 — EUR-Lex: Articles 5 to 10 (pay information, right to request, gap reporting and joint assessment), 18 (burden of proof) and 34 (transposition deadline, 7 June 2026).
• Spanish Royal Decree 902/2020 on equal pay between women and men — BOE: mandatory pay register for all employers and pay audit requirements.