Extent of Protection
To support gender equality regarding remuneration, the statutory minimum wage applies to all employees in all sectors of business and therefore, provides minimum equal payment. Additionally, the Remuneration Transparency Act provides an individual right to information on remuneration. This right is granted to all employees working in establishments with more than 200 employees. However, the Act does not provide regulations on how to enforce claims for equal payment based on such information.
In May 2020, the highest labour court in Germany ruled that freelancers may also have the right to information on remuneration, if the freelancer qualifies as an employee in accordance with aspects of equal treatment. Whether this is the case, must be assessed on the basis of the circumstances of each individual situation.
The employee may, if necessary, challenge the remuneration based on the general principles of discrimination law and/or the general principle of equal treatment in order to have the perceived disadvantage reviewed in court and, if necessary, corrected. Moreover, the employee may also assert claims for damages or remuneration to compensate for the disadvantages sustained as a result of their unequal treatment.
It is possible that the employee may rely on a presumption of proof due to the information received, on grounds of the Remuneration Transparency Act.
Any employer who fails to comply with the applicable statutory minimum wage, may be fined pursuant to the German Minimum Wage Act.
All available relief measures, procedures and tangible employment actions are provided by the Minimum Wage Act. In the vast majority of cases, employees are unable to prove a violation of the principles of non-discrimination and equal treatment. Consequently, there is a notable absence (to date) of any meaningful litigation having to do with equal pay premised on the Remuneration Transparency Act. However, as the Act is a fairly recent addition to German labour law, the legal consequences (an uptick in new litigation) may take time to materialise.
An employer located outside of Germany is required to register certain information, in writing, with the relevant customs authority, if it employs workers in specific business sectors – including, but not limited to the construction, catering and hotel or facility cleaning sectors.
Employers with more than 500 employees and which are obliged to provide a management report pursuant to the German Commercial Act, are required to include a detailed report on equality and equal pay every three/five years, which is to be published in the Federal Gazette.