Right to information on the level of remuneration outside of § 10 EntgTranspG

Decision of the Higher Labor Court of Lower Saxony of September 10, 2024, Az. 10 SLa 221/24

Facts of the case

The plaintiff, a veterinarian, was employed at the veterinary clinic of her father, the defendant, until February of 2022. The clinic employed fewer than 200 employees. She filed a step-by-step-action lawsuit for information, submission of an affidavit and payment of a quantifiable difference in the amount withheld in breach of equal pay. The plaintiff received a gross monthly salary of EUR 3,900, while her brother, who was also employed as a veterinarian six years later, received a monthly salary of EUR 7,100 at the same time. She suspected gender-based discrimination and therefore demanded the subsequent payment of wages. The defendant denied the allegations and claimed that the plaintiff had only worked about 20 hours per week and could take time off at short notice at any time. Her children and their care needs would have had priority at all times. Her brother, on the other hand, had worked full-time and was constantly on call during weekends and evenings. The labor court dismissed the step-by-step action for lack of a basis for the claim. The plaintiff then appealed.

Decision 

In its decision, the Higher Labor Court of Lower Saxony upheld the judgment of the Labor Court, but affirmed the plaintiff's claim for information.

It is undisputed that there was no right to information under the German Transparency in Wage Structures Act (Entgelttransparenzgesetz, EntgTranspG). This is because the Act only provides for a right to information relating to equal pay above a threshold of 200 employees (Sec. 12 (1) of the German Transparency in Wage Structures Act).

However, an obligation to provide information may exist in good faith (Section 242 of the German Civil Code (Bürgerliches Gesetzbuch; BGB)). In this respect, the Higher Labor Court transferred the case law developed by the Federal Labor Court on the principle of equal treatment to equal pay cases. Due to the fundamental significance of the legal question of the scope of the burden of proof for gender discrimination claims, the Higher Labor Court has allowed an appeal to the Federal Labor Court, which is pending under the reference number 8 AZR 269/24.

The right to information pursuant to Section 242 of the German Civil Code (BGB) requires in particular the at least probable existence of a claim for payment by the party requesting information against the other party. In this case, Article 157 (1) TFEU and Section 3 (1) and Section 7 of the EntgTranspG can be considered as the basis for the claim for equal pay for equal work or work of equal value without discrimination on grounds of gender.

The reversal of the burden of proof under Section 22 of the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG) also applies in equal pay disputes. This means that the party claiming equal pay must only show and, in the event of dispute, prove that the employer pays a lower salary than a comparable employee of the opposite sex. In this case, unequal treatment on the grounds of gender is presumed and the employer bears the burden of proof that there has been no breach of the provisions on protection against discrimination.

However, in the specific case, the court ruled that the facts presented by the plaintiff were insufficient to substantiate the presumption of disadvantageuous pay due to gender. The plaintiff's assertion that male veterinarians received a higher salary was not sufficiently substantiated. Nor could the plaintiff prove that she performed the same work or work of equal value as her brother and yet received lower pay.

Practical tip

If the right to information based on Section 242 of the German Civil Code (BGB) also applies to equal pay cases, the procedural hurdles for equal pay lawsuits will be set low. This ruling is particularly serious for small and medium-sized employers (fewer than 200 employees), as the threshold for triggering the reversal of the burden of proof under Section 22 German General Equal Treatment Act (AGG) in equal pay cases is extremely low. It is sufficient to show that the employer pays a colleague of the opposite sex who performs the same or equivalent work a higher salary. And who doesn't talk to colleagues about salary, which is permissible?

The decision gives a foretaste of what is to come: the EU Pay Transparency Directive, which is to be transposed into national law by June 7th, 2026, provides for an employee's right to information regardless of the size of the company.