Joint pay assessment and the 5% trigger (Article 10)

Pay reporting can trigger a next step: the joint pay assessment. This is the mechanism that turns reporting into more than a number - it forces an unexplained pay gap out into the open and through to an action. Here is exactly when it is triggered under Article 10, and what the 5% trigger actually measures.

When a joint pay assessment is triggered

A joint pay assessment is required when all three conditions are met at the same time (Article 10(1)):

1. Pay reporting shows an average gender pay gap of at least 5% between female and male workers in a category of workers (a “category of workers”).
2. The employer has not justified the gap on the basis of objective, gender-neutral criteria.
3. The employer has not remedied the unexplained gap within six months from the date of the report.

It is the combination that counts. A pay gap of 5% or more does not, in itself, trigger anything if it can either be objectively justified or is corrected within the deadline.

5% - of the average, in one category of workers

Two details determine whether the trigger applies:

• It is the average. The 5% is a gap in average pay, not in the median. (The report contains both measures - see Pay reporting - but it is the average that Article 10 hangs the trigger on.)
• It is per category of workers. The gap is measured in a category of workers - workers who perform the same work or work of the same value. An overall average gap below 5% can therefore mask a category that lies above it. What makes a category comparable is determined by the gender-neutral criteria - see Work of equal value.

Together with workers’ representatives

The assessment is joint: it is carried out in cooperation with the workers’ representatives. It must reveal whether there are gaps that cannot be objectively justified, and set out how they are to be corrected. It is therefore not an internal exercise you can keep to yourself - the representatives have a role in both the analysis and the follow-up.

The six-month window

The deadline in condition 3 is real: if you remedy the unexplained gap within six months after the report, the joint pay assessment is not triggered. The window makes the date of the report a point you must count from - not a formality you can set aside. Whoever spots an unexplained gap early and acts avoids the obligation; whoever waits ends up in the joint assessment.

It presupposes that you report

The trigger builds on pay reporting, so it bites only on employers within the reporting thresholds in Article 9. If you are below the threshold that applies to you, the 5% obligation in Article 10 does not arise automatically - but the equal pay principle and the burden-of-proof rules still apply. See Pay reporting and Burden of proof.

In the Danish draft

The Danish draft bill places the joint pay assessment in proposed § 5 f(2): it is required where the report shows an unexplained average gender pay gap of at least 5% in a category of workers, that has not been remedied within six months. Delivery of the report itself to the proposed new authority sits in another provision (proposed § 5 e). Both elements are draft, not applicable law - see The Danish implementation.