In jurisdictions that have already transposed the Directive and introduced the new right to pay information, employers are beginning to receive requests. They are quickly discovering that compliance involves far more than simply producing a set of figures. 

The new right to information was the focus of the second webinar in our five-part PTD webinar series. In this article, we highlight several practical pointers employers should consider when it comes to these requests.  

For a deeper discussion on response deadlines, pay calculations, data privacy considerations, follow-up questions, the involvement of worker representatives and differing national approaches, you can watch the full webinar and access the accompanying slides here. 

Under the Directive, workers will have the right to receive, in writing:   

• their individual pay level; and 

• the average pay levels for women and men in the category of workers performing the same work or work of equal value. 

We explored categorisation in the first webinar of our series. The recording and slides can be accessed here.  

In practice, employers must provide six figures in response to a request: the worker’s own annual and hourly pay, and the average annual and hourly pay for women and for men in the category. 

Even if the right to information has not yet been implemented locally, employers should ensure they can produce these figures accurately and consistently before requests begin arriving. 

The Directive requires employers to respond within a reasonable period and no later than two months of the date of request. Member States have, however, introduced shorter deadlines.  

In Malta, for example, employers must respond within eight calendar days. If they do not, the worker can escalate the request, first to a worker representative and then to the equality body. Elsewhere, Lithuania, another Member State that has transposed the Directive, requires a response within one month. In Italy, employers must respond within 60 days from the request. 

Employers should check the deadlines that apply in each country where they operate and ensure that their internal processes can meet them. 

One of the most difficult practical questions arises when categories are very small. 

The Directive recognises that providing average pay information must comply with GDPR requirements. In some situations, disclosing category averages could indirectly reveal another worker’s pay.  

There is no single solution to this issue, and we explored a range of possible approaches on the webinar in further detail. Employers should nevertheless establish a clear internal approach before they begin receiving requests. 

The quality of the explanation provided is often as important as the figures themselves. To get ahead of potential follow-up questions, employers should consider whether additional context would help workers understand the information provided. A well-drafted response could: 

• define any unfamiliar terms; 

• explain how the calculations have been made; 

• specify which pay elements were included and for what period; 

• clarify that the comparison is based on a category rather than a specific job; 

• explain that different jobs (and even different functions) may exist within the same category; and 

• note that pay differences may reflect factors such as role requirements, competence, experience or performance-related pay.  

Some employers may also wish to include additional information. For example, they could break down the individual’s total annual pay into its different elements, provide the applicable pay range and explain where the individual sits within that range, or refer to relevant pay-setting and progression policies. This context may, in some cases, be more meaningful to the worker than the required category averages alone. 

In practice, many follow-up questions are not about incomplete or inaccurate data, but about why a worker has been placed in a particular category or why their pay is below the average. Providing some explanation upfront may help address these questions and reduce the scope for misunderstandings. 

Of course, this requires a careful balance. Some employers may prefer to limit responses to the information strictly required by law. Others may take a more risk-based approach and provide additional context to reduce the likelihood of further disputes or challenges. 

Even with a robust, clearly articulated response, employers should anticipate follow-up questions such as: 

• ‘Why am I in this category?’ 

• ‘Why am I below average?’ 

• ‘What pay elements were included?’ 

• ‘What reference period was used?’  

Questions about promotions, pay rises or career progression should generally be managed through normal HR processes rather than the right-to-information procedure. 

The Directive establishes the right of workers to be informed regularly about their right to request pay information and how to exercise that right. 

Employers should review local transposing legislation carefully, as Member States may prescribe how and when this information must be communicated. 

Depending on local requirements, organisations may provide reminders through: 

• email communications; 

• intranet announcements; 

• payslip messages; or 

• other workforce communications. 

Even though most Member States have not yet fully transposed the Directive, employers should prepare now for the new right to information. Once the right takes effect under national law, organisations may have less time than the Directive’s two-month backstop to respond. In Malta, for example, employers have only eight calendar days to provide the required information. 

Project teams (including HR, Reward, Legal and Compliance) should identify how they will calculate the required pay figures, confirm their categorisation methodology, establish a process for handling privacy concerns and develop a clear response strategy. Advance preparation will reduce compliance risks and make it easier to respond when requests begin arriving.