Companies with fewer than 100 employees will not have to submit reports on pay structures and the gender pay gap. This does not mean, however, that pay transparency applies only to large enterprises and corporations. The newly published draft Act on strengthening the application of the right to equal pay for men and women for the same work or work of equal value introduces, among other things, a definition of pay structure and clarifies the criteria for assessing the value of work.
One thing is correct: for organisations employing fewer than 100 people, pay reports will be optional. For other companies, reporting will be mandatory. However, the report is only the final stage of the system designed to introduce pay transparency. Before it is prepared, employers will have to take a number of steps that will allow them to calculate the pay gap and assess whether their organisations have pay discrepancies for the same work or work of equal value. Importantly, this will apply to all companies, and failure to take appropriate action may result in a fine ranging from PLN 2,000 to PLN 60,000.
Employees Will Have the Right to Information
Under the Act, an employee will have the right to request information on their individual pay level and on average pay levels, broken down by gender, received by people performing the same work or work of equal value. The need to calculate pay levels and organise the job structure so that such calculations can be made objectively will apply to everyone — even an accounting office employing only a few people.
“What is more, by 31 March each year, every employer, regardless of the size of employment, will be required to remind employees, in the manner adopted in a given company, of the possibility of submitting such a request. If an employee considers that the information received is incomplete, they will be able to request additional explanations, to which the employer will be obliged to respond within 30 days. So we should not think that smaller companies can ignore the issue. In their case, preparatory work for calculating the pay gap must also be carried out,” explains Kinga Żbikowska, Senior Manager for Payroll and Client Service at ADP Poland.
Where should employers begin? They will be required to assess the value of work and prepare a pay structure ensuring equal pay for work of the same value. This is to be achieved through an analysis of the work performed in a specific position or function and a job description, which will form the basis for the entire job evaluation process. Such a description should include information on the job title, its place in the organisational structure, assigned tasks and responsibilities, and required skills, competences and qualifications.
A useful tool in this process may be the guide “Guidelines for Assessing and Comparing the Value of Work in Accordance with the Four Criteria Adopted in Directive 2023/970”, prepared by the Ministry of Family, Labour and Social Policy. All of this is intended to demonstrate that the company applies clear criteria for hiring and remuneration. Job descriptions will make it possible to define what “work of the same value” means in a given company. If two people perform different tasks despite having similar job titles, a reliable job description may protect the employer against allegations of discrimination.
The next step is to review job advertisements and recruitment practices and adapt them to the new requirements. For example, indicating the required gender of a candidate in a job advertisement without strong justification, using phrases such as “salary adequate to experience”, or asking candidates about their previous pay may signal potential problems.
Watch Out for Prohibited Clauses
Under the new regulations, any contractual provisions prohibiting employees from disclosing information about their earnings in order to enforce the principle of equal pay will automatically become invalid. Employers must review not only employment contracts, but also remuneration regulations, bonus policies, non-compete agreements and confidentiality agreements, including NDAs.
Leaving such provisions in documentation after June 2026 will not only be legally ineffective, but may also be regarded as an attempt to obstruct employees’ access to their rights. This could expose the company to an inspection by the National Labour Inspectorate and potential compensation claims.
What clauses are we talking about? Employees quite often encounter provisions in employment contracts such as: “Disclosure of information about awarded bonuses and allowances to other employees of the company shall be treated as a breach of trade secrets” or “All information concerning the company’s pay policy is confidential and its disclosure requires the written consent of the management board.”
To put it plainly, such clauses can already be relatively easily challenged from a legal perspective, although in practice few people choose to do so because signing a contract with a new employer is not usually the best moment for negotiation.
Another aspect of the proposed changes should also not be overlooked. In possible court disputes concerning unequal treatment in relation to the right to remuneration, there will be a change in the burden of proof, which in practice is one of the fundamental principles of civil procedure.
“The draft Act introduces the so-called reversed burden of proof. This means that if a case goes to court, it will not be the employee who must first prove the employer’s fault. Instead, the employer will have to present evidence that it conducts a fair pay policy. The clauses mentioned above are a factor that weighs against the employer, which is why it is better to review documents in advance and remove or modify provisions that raise doubts,” says Tomasz Czerkies, attorney-at-law at ADP Poland.
Source: CEO.com.pl
