Directive guide

Remediation and the joint pay assessment — the 5% cascade

By , founder of Egalis ·

In short

For employers that report (100+ employees), three things can happen to a per-category gap after the report: it is justified on objective, gender-neutral criteria; it is remedied within a reasonable period; or — if it is at least 5%, unjustified and unremedied for 6 months from the reporting date — it triggers a joint pay assessment with workers’ representatives, whose results reach the monitoring body.

1. Justification — the first, cheapest exit

A pay difference for work of equal value is lawful when objective, gender-neutral criteria explain it: seniority, relevant qualifications, documented performance. Market premiums only with caution — the Commission’s FAQ of 6 August 2026 notes that market conditions are less likely to be linked to the value of the job itself; such a premium must be justified, gender-neutral and proportionate (Enderby, C-127/92). Two things disqualify a justification instantly: criteria invented after the fact, and “negotiation” — the candidate who asked for more is not an objective criterion.

Write it down when it happens

The justification that survives is contemporaneous: recorded when the pay decision is made, per person, referencing the criterion. Egalis attaches justifications to flagged outliers at decision time, so the file exists before anyone asks for it.

2. Remediation — the second exit

What cannot be justified must be corrected in cooperation with workers’ representatives, within a reasonable period — and within 6months of the reporting date if the joint assessment is to be avoided. In practice, remediation means raising the disadvantaged group’s pay; the cost of closing each category’s gap is a number worth knowing before the report makes it a deadline — the calculator estimates it.

3. The joint pay assessment — the mandatory audit

When triggered, the assessment is done jointly with workers’ representatives and must contain seven elements (Art. 10(2), points a–g):

  1. an analysis of the proportion of women and men in each category of workers;
  2. average pay levels and complementary or variable components per category, by sex;
  3. any differences in average pay levels between women and men in each category;
  4. the reasons for those differences, based on objective, gender-neutral criteria, if any, as established jointly by the employer and workers’ representatives;
  5. the proportion of women and men who benefited from any pay improvement on return from maternity, paternity, parental or carers’ leave, where such improvements occurred in the category during the leave;
  6. measures to address differences not justified on objective, gender-neutral criteria;
  7. an evaluation of the effectiveness of measures from previous joint pay assessments.

The results go to workers and their representatives and to the monitoring body — and on request to the labour inspectorate and the equality body. Pay must then actually be corrected within a reasonable time.

4. The playbook that keeps you out of Art. 10

Everything upstream of the trigger is cheap; everything downstream is expensive and public. Monthly per-category monitoring, contemporaneous justifications, and budgeted remediation before the reference year closes — that is the whole game. The cascade with its clocks is exactly what Egalis automates.

Frequently asked questions

Is every gap above 5% illegal?

No. A difference justified by objective, gender-neutral criteria — seniority, qualifications, documented performance — is lawful at any size. The 5% threshold triggers scrutiny, not automatic liability: what is illegal is an unjustified difference for equal work or work of equal value.

Can we remedy by lowering the higher-paid group's pay?

Not for the past: for the period before the correction, CJEU case law requires levelling up (Smith v Avdel Systems, C-408/92; Safeway v Newton, C-171/18). For the future, EU law does not forbid levelling down, but national labour law usually prevents unilateral pay cuts — in practice, budget for raises in the disadvantaged group.

Who takes part in the joint pay assessment?

The employer and workers' representatives, together. The results go to workers and representatives and to the monitoring body; on request, to the labour inspectorate and the equality body. It is not an internal memo.

How do we avoid ever reaching Art. 10?

Watch metric (g) monthly, justify what is justifiable in writing when it appears (not two years later), and remedy what is not — the 6-month clock only starts biting when a flagged category reaches the report unaddressed.

Next step

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Updated: 26 September 2026. Figures reflect Directive (EU) 2023/970, unchanged — the Commission has ruled out any postponement, and its FAQ of 6 August 2026 confirms the reporting calendar. The transposition deadline of 7 June 2026 has passed: as of September 2026 only Italy, Slovakia, Lithuania, Malta and Greece have complete implementing laws, and most member states are still drafting. Where your country has no implementing law yet, the Directive is the reference; national rules may be stricter once adopted.

Egalis does not provide legal advice; for specific situations, consult an employment lawyer.