How to attract new recruits in line with the requirements of the Directive?
Building and maintaining a sufficiently large and qualified team is one of the main challenges facing any business. It is particularly significant from the perspective of companies operating in sectors with deficit occupations, where there is strong pressure on wages and high employee turnover. This often necessitates the development of ever more attractive employment offers for potential new employees. But how can this be done without being accused of unequal treatment vis-à-vis existing employees in the light of the Directive?
Firstly, it is worth pointing out that, under the Directive, every employer will be obliged to have structured remuneration structures in place that ensure the implementation of the principle of equal pay for equal work or work of equal value. Remuneration structures should group employees into categories according to the value of their work. The value of an employee's work (and therefore the category to which he or she will belong), should be determined by the employer on the basis of objective criteria such as, skills (including soft skills), effort, responsibilities or working conditions. However, a permissible criterion for differentiating pay is not and will not be the employer's desire to attract new hires. This means that, insofar as the newly recruited candidate is expected to provide work of the same value as the person already employed (in particular, e.g. in an identical position), offering him or her a higher salary than other comparable employees will entail risks.
It should also be noted that the Directive introduces the principle that the assessment of whether employees are in a comparable situation will not be limited to those who are employed at the same time as the employee concerned. This means that it will be similarly risky to offer a clearly higher salary to a new person who is to replace an existing employee and provide work of the same value. In particular, in a situation where the new employee and the existing employee will be of a different sex, such a situation may give rise to claims against the employer.
In this context, it should also be borne in mind that the obligation to indicate the proposed remuneration for a given position at an early stage in the recruitment process (e.g. in the advertisement), will not only benefit the candidates themselves, but also those already employed. In this way, they will easily be able to control whether the employer does not unduly attempt to differentiate their salaries in favour of employees newly recruited for comparable positions.
The Directive should, therefore, enforce greater caution in the practice of offering new employees higher salaries compared to those already in place. Any possible pay differences between employees doing similar jobs should be based on objective criteria (e.g. length of service, relevant qualifications).