Work of equal value: the four-factor framework (Articles 3 and 4)

The equal pay principle does not apply only to two people in the same position. It applies to the same work and to work of equal value - and it is the latter that makes the concept difficult and important. It is the definition on which everything else depends: who must be compared in the report, when the 5 % trigger is hit, and what an objective justification for a pay difference can even consist of.

What “pay” covers

“Pay” is understood broadly (Article 3(1)(a)): the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly. Variable and complementary pay components - bonuses, allowances, pension, benefits in kind - are therefore included. This is worth remembering, because a pay difference that does not show in the basic pay can sit in the variable components.

“Work of equal value” is not a free assessment

The concept of work of equal value (Article 3(1)(g)) does not stand alone. It is defined by reference to the criteria in Article 4(4) - it is not a free assessment in which two jobs can be called “equally valuable” because they feel alike. The assessment must be made on the objective, gender-neutral criteria below.

The four factors

The comparison must be based on at least four factors (Article 4(4)):

• skills
• effort
• responsibility
• working conditions

and, where relevant, other factors of relevance to the specific job. Two things are easy to overlook: soft skills must not be undervalued - the directive mentions them explicitly - and the four factors are a minimum, not a ceiling. You may include more relevant factors; you simply may not settle for fewer.

Category of workers

When pay differences are measured and the 5 % trigger is assessed, this happens within a category of workers (Article 3(1)(h)): workers performing the same work or work of equal value. The division into categories must be done in a non-arbitrary way and on the same gender-neutral criteria. You therefore cannot group workers so that a pay difference disappears into a convenient split.

The DISCO code is not the yardstick

Here is a Danish pitfall worth stating plainly: in the Danish draft the basis for comparison is the four gender-neutral factors (proposed § 1(3) and § 1 a(9)-(10)) - not the DISCO code. DISCO is used in the draft as a grouping tool in the report itself (among other things for the conditional 50-99 band, see The Danish implementation), but it is not what decides whether two jobs are of equal value. Confusing the two is an easy, but wrong, shortcut.

In the Danish model there is also an important nuance: pay continues to be set to a large extent through collective agreements. Pay structures and criteria must assess pay in a gender-neutral way - they do not in themselves set the individual’s pay.

Intersectional discrimination

The directive recognises intersectional discrimination (Article 3(2)(e)): discrimination based on sex in combination with one or more other protected grounds. It is a factor that courts and authorities must be able to take into account - among other things in connection with compensation (Article 16(3)) and penalties (Article 23(3)) - but it is not a separate, new basis for a claim. The concept does not in itself change the scope of the employer’s obligations.

Why it is the foundation

Because almost everything else depends on it: who is compared in the pay report, when a joint pay assessment is triggered, and what an objective, gender-neutral justification for a pay difference can be if the burden shifts. A documented, gender-neutral assessment of the value of work is therefore not an academic exercise - it is the foundation on which the rest rests.