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Not discrimination to pay female employee less

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Legal news
calendar 30 January 2022
globus Norway

There is still an increasing focus on equality at the workplace within both the private and public sector. Although the issue seems simple enough to manage, unequal pay for equal work remains a common issue. A recent decision from the Anti-Discrimination Tribunal shows why. In this case, a salary gap between a female employee and two of her male co-workers was not discrimination. The reason was that there was no actual link between the employee’s salary and her age or gender.

A female deputy director in the Norwegian Tax Administration discovered that her salary was lower than her two male co-workers, who also worked as deputy directors. Her salary was approximately NOK 6,000 to 25,000 lower than their salary, despite the fact that she had both more experience and longer seniority. She had also previously been on the same pay level as the two co-workers.

In the company, individual salaries were determined based on negotiations. In this connection, employees' results and behavior were set up against the company's expectations to the position in question. The management was also required to show direction, help employees and teams develop, encourage change and create results.

After raising the issue relating to her salary, the female employee had participated in several salary interviews where she asked for a salary increase. During the meetings, she pointed out that there had been significant changes to the circumstances under which her salary originally been based. As her request for a salary increase had not been met, she believed that the company discriminated against her on the basis of both her gender and age.

No link between the unequal pay and her gender or age

Gender and age discrimination is prohibited. The prohibition includes that employees are entitled to equal pay for work of equal value. Despite this, the tribunal found that there was no actual link that suggested that the employee had been discriminated against.

The tribunal overall found that both in terms of age and gender, there was no documentation suggesting that the company had let employee’s gender or age play a role when her salary was determined.

Because the female employee’s salary was determined based on negotiations between the individual employee and the company, the tribunal found it difficult to overrule the company’s assessment. The tribunal could not determine how salary criteria were applied. In relation to seniority, it was not one of the salary criterions, the employee was not automatically entitled to the highest salary because she was the oldest and had the longest seniority. In relation to the claim of gender discrimination, the tribunal emphasized that there were both several female and male employees in the same position as her with higher salaries than the employee. This showed that the employee’s gender had not played any role. At the same time, it noted that the pay gap was relatively small.

IUNO’s opinion

Equal pay for equal work may seem like a simple principle. However, as illustrated by the Anti-Discrimination Tribunal's decision, it is not always as simple. It is not prohibited to apply individual salary criteria, such as work performance, market considerations and other elements when determining the salary as long as the salary criteria are not directly or indirectly discriminatory.

IUNO recommends that companies carefully consider what criteria to use and how they will affect the employees. Companies should be careful that even if criteria appear gender or age neutral, criteria can be indirectly discriminatory when applied to a wider group. For example, in terms of seniority, men typically have been in the work force for a longer time, which could suggest that the criteria is indirectly discriminatory.

[The Norwegian Anti-Discrimination Tribunal’s decision 21/280 of 7 January 2022]

A female deputy director in the Norwegian Tax Administration discovered that her salary was lower than her two male co-workers, who also worked as deputy directors. Her salary was approximately NOK 6,000 to 25,000 lower than their salary, despite the fact that she had both more experience and longer seniority. She had also previously been on the same pay level as the two co-workers.

In the company, individual salaries were determined based on negotiations. In this connection, employees' results and behavior were set up against the company's expectations to the position in question. The management was also required to show direction, help employees and teams develop, encourage change and create results.

After raising the issue relating to her salary, the female employee had participated in several salary interviews where she asked for a salary increase. During the meetings, she pointed out that there had been significant changes to the circumstances under which her salary originally been based. As her request for a salary increase had not been met, she believed that the company discriminated against her on the basis of both her gender and age.

No link between the unequal pay and her gender or age

Gender and age discrimination is prohibited. The prohibition includes that employees are entitled to equal pay for work of equal value. Despite this, the tribunal found that there was no actual link that suggested that the employee had been discriminated against.

The tribunal overall found that both in terms of age and gender, there was no documentation suggesting that the company had let employee’s gender or age play a role when her salary was determined.

Because the female employee’s salary was determined based on negotiations between the individual employee and the company, the tribunal found it difficult to overrule the company’s assessment. The tribunal could not determine how salary criteria were applied. In relation to seniority, it was not one of the salary criterions, the employee was not automatically entitled to the highest salary because she was the oldest and had the longest seniority. In relation to the claim of gender discrimination, the tribunal emphasized that there were both several female and male employees in the same position as her with higher salaries than the employee. This showed that the employee’s gender had not played any role. At the same time, it noted that the pay gap was relatively small.

IUNO’s opinion

Equal pay for equal work may seem like a simple principle. However, as illustrated by the Anti-Discrimination Tribunal's decision, it is not always as simple. It is not prohibited to apply individual salary criteria, such as work performance, market considerations and other elements when determining the salary as long as the salary criteria are not directly or indirectly discriminatory.

IUNO recommends that companies carefully consider what criteria to use and how they will affect the employees. Companies should be careful that even if criteria appear gender or age neutral, criteria can be indirectly discriminatory when applied to a wider group. For example, in terms of seniority, men typically have been in the work force for a longer time, which could suggest that the criteria is indirectly discriminatory.

[The Norwegian Anti-Discrimination Tribunal’s decision 21/280 of 7 January 2022]

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