When does the burden of proof shift to the employer?
As soon as an employee presents facts that give rise to a presumption of discrimination — such as pay gap data from the employer’s own reports or inconsistent job classification.
HomeWhy the burden of proof shifts from employee to employer
The new pay transparency directive changes everything
Why the burden of proof shifts from employee to employer
In a wage dispute, an employee must today prove that discrimination has occurred. In practice, this almost never happens — you have no insight into what colleagues earn. The new pay transparency directive reverses this. And most employers are not prepared for it.
Last update: April 21, 2026 · Reading time: 8 minutes
Quick answer
- Article 18 of EU Directive 2023/970 shifts the burden of proof from employee to employer
- Once facts give rise to a suspicion of discrimination, the employer must prove the contrary
- Employees gain a right to pay information — access to average pay levels per job category
- Employers must have objective, gender-neutral job evaluation and documented pay criteria
- Non-compliance results in back pay, sanctions, and increased costs for retaliation
What changes under the WGBMV
Article 18 of EU Directive 2023/970 is clear: when facts are presented that give rise to a suspicion of discrimination, the employer must prove that no discrimination has occurred. The burden of proof shifts.
Today
How it works now
Under current Dutch law, the burden of proof lies with the employee. They must provide facts that prove discrimination. Without access to colleagues' salary data, this is virtually impossible. The result: claims fail before they even begin.
Soon · Art. 18 EU 2023/970
The burden of proof shifts to the employer
Article 18 of EU Directive 2023/970 is clear: when facts are presented that give rise to a suspicion of discrimination, the employer must prove that no discrimination has occurred. The burden of proof shifts.
Important: the directive also gives employees the right to pay information — access to average pay levels per job category, broken down by gender. This makes building a prima facie case significantly easier.
What triggers the shift
An employee (or former employee) only needs to present facts that suggest discrimination. Think of:
1
Pay gap data from the employer's own reports
2
Inconsistent job classification — comparable work, different grading
3
Absence of objective criteria for individual pay decisions
4
Pay information data that the employee can request under the new law
From that point on, it's up to the employer to provide justification.
What you need to be prepared as an employer
1
Objective, gender-neutral job evaluation
based on the 4 statutory factors: skills, effort, responsibility, and working conditions (art. 4 para 4)
2
Documented justification
for each individual grading — especially for above-CAO agreements
3
Pay report per job cluster
broken down by gender (art. 10 para 2d)
4
Normalization of secondary employment conditions
bonuses, company car, training budget and other benefits must be factored in
Consequences if you're not prepared
The risks are concrete:
1
Back pay
payment of the difference, with retroactive effect
2
Administrative penalties
and mandatory pay scale adjustments
3
Legal costs
the employer bears the burden of proof, and thus the cost risk
4
Retaliation protection
employees who file claims must not be disadvantaged. If you do, additional penalties follow
How to prepare for this
Without documentation infrastructure, you cannot bear the burden of proof. Payqual helps employers set up job cluster classifications, pay gap analyses, and documentation of objective pay criteria — so you can provide justification immediately in a claim or audit.
1
Job cluster classification
2
Pay gap analyses
3
Objective pay criteria
Frequently asked questions
Does the reversed burden of proof apply to all employers?
Yes. Article 18 of the directive has no company size threshold. Employers with fewer than 100 employees are also bound by the burden of proof shift.
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