Who must prove that there is no pay discrimination?

The employer must explain the difference, not the employee

Once an employee provides facts that suggest discrimination based on sex, it is up to the employer to demonstrate that there is no pay discrimination. The employee does not have to provide the proof that something is wrong; this threshold is deliberately set low. The employee must make it plausible that there is reason to doubt — for example with figures on a pay difference within the same job category — and from that point on, the burden of explanation lies with the employer.

For Dutch private employers, this does not yet apply as an enforceable rule: the bill that establishes this reversal of the burden of proof in national law is pending before the House of Representatives and has not yet been adopted. The directive does not automatically apply between employer and employee. For the public and semi-public sector, it is different: they can already be directly bound by the directive, because the implementation period has now expired. And for all employers it applies that judges must interpret existing national law — including the Equal Treatment of Men and Women Act — as much as possible in light of the directive.

Where this is stated in the directive and the law

The reversal of the burden of proof is laid down in Article 18(1) of Directive (EU) 2023/970: in a dispute, the burden of proof lies with the employer once the employee submits facts that suggest discrimination. In the Netherlands, this principle has long been known in outline from case law on the Equal Treatment of Men and Women Act, and the College for Human Rights handles cases on equal pay partly on this basis. The statutory anchoring of the stricter, directive-compliant version for private employers will follow with the Law implementing the Directive on pay transparency between men and women, which is currently still under consideration by the House of Representatives.