An employer can rely on an objective justification where a pay difference is genuinely explained by gender-neutral criteria that are relevant to the work and applied consistently. Article 10 does not provide a closed checklist of acceptable justifications. The wider Directive requires objective, gender-neutral criteria for pay structures and pay progression, and Article 4 refers to factors such as skills, effort, responsibility and working conditions when assessing work of equal value. In practice, an employer should be able to identify the criterion, show why it affects pay, demonstrate that workers were assessed consistently and retain evidence connecting the criterion to the actual difference. A label such as performance, experience or market conditions is not enough without evidence showing how it was used and why it produced the result.
Jurisdiction: European Union
The Criterion Must Be Objective and Gender Neutral
Article 10(1)(b) asks whether the employer has justified a category-level pay difference on the basis of objective, gender-neutral criteria. The core issue is therefore not whether the employer can provide any explanation, but whether the explanation is independent of sex, relevant to the pay decision and capable of being evidenced. Criteria that are vague, inconsistently applied or closely correlated with biased historical practices are harder to defend. Employers should test both the wording of a criterion and the way it operates in practice.
Articles 4 and 6 Provide the Wider Pay-Setting Framework
The Directive's objective-criteria requirement appears beyond Article 10. Article 4 requires pay structures to enable assessment of equal work or work of equal value using objective, gender-neutral criteria and refers to skills, effort, responsibility and working conditions, with other relevant factors where appropriate. Article 6 requires the criteria used to determine pay, pay levels and pay progression to be objective and gender neutral. These provisions reinforce the expectation that an Article 10 justification should be connected to a structured, explainable pay-setting process rather than reconstructed after a gap appears.
Common Explanations Still Need Evidence
Experience, performance, skills, qualifications, responsibility, location, market conditions or other job-related factors may be relevant in a particular pay system, but none should be treated as an automatic safe harbour. The employer should be able to show what the criterion means, how it was measured, when it was applied and whether comparable workers were treated consistently. For example, citing performance is weak if ratings are undocumented or managers use materially different standards. Citing experience is weak if only total years are counted without showing why the experience is relevant to the role.
Historical Salary Alone Is a Weak Explanation
An employer may inherit salary differences through acquisitions, legacy structures or past negotiation practices. Historical origin can explain how a difference arose, but it does not necessarily provide an objective, gender-neutral justification for continuing the difference. If a legacy disparity is not supported by current objective criteria, the employer should consider remediation rather than treating history as sufficient evidence. The same caution applies to previous salary, bargaining behaviour or manager discretion where those factors are not part of a controlled gender-neutral pay framework.
A Defensible Justification Should Be Reconstructable
The practical test is whether the employer can reconstruct why the pay difference exists. Records should identify the workers and category involved, the criterion relied upon, the evidence supporting that criterion, how the criterion affected the pay decision and whether the same rule was applied to workers of both sexes. Where several factors contributed, the employer should avoid vague statements and document their actual effect. This evidence is especially important because workers' representatives have a role in joint pay assessments and may need to evaluate the reasons for pay differences.
Frequently Asked Questions
Does the Directive list every acceptable reason for a pay gap?
No. It requires objective, gender-neutral criteria but does not provide a closed list of lawful justifications.
Can performance justify a pay difference?
Potentially, but the employer should show that the performance criterion is relevant, objective enough to review, gender neutral and consistently applied.
Is historical salary enough to justify a gap?
Not necessarily. Historical origin may explain the difference but does not automatically justify continuing it under an objective, gender-neutral pay system.
Related Guides
Official Sources
Requirements and practices differ by jurisdiction and organisation. Check current local law, official guidance and professional advice for a specific situation.