Pay transparency: can you explain today why your employees earn what they earn?

In practice, things rarely go wrong when drafting a pay range for a job vacancy, but rather when an employee requests a pay comparison and you have two months to justify the difference. In this article, we take a closer look at what the reversal of the burden of proof means in concrete terms, which documents you should already be able to produce today, and how to build your evidence file before a dispute arises.

What is changing from a legal perspective?

Under the current regime, an employee who feels discriminated against must personally prove that they are being paid unequally, regardless of whether they work in an SME or in a large company. In practice, this is an almost insurmountable hurdle: they have no access to their colleagues’ pay data, no insight into the company’s pay bands and no way of testing the criteria applied.

From June 2026, a presumption of unequal pay will be sufficient. As soon as the employee substantiates that presumption, for example on the basis of the information they have requested under their new right to information, the burden of proof shifts to the employer. It is then up to you to demonstrate that the pay difference is objectively justified on the basis of legal criteria.

What this means in actual proceedings is that the court will not ask whether the difference exists — that is usually undisputed — but why it exists and whether that justification was documented in advance. A justification that is only built up during the proceedings carries considerably less legal weight than one embedded in an existing pay structure.

What does a court accept as an objective justification?

The European directive and its Belgian implementation leave room for objective criteria that can explain a pay difference. In practice, four categories are accepted:

1. Seniority — provided it is documented in the personnel file and applied consistently across the entire organisation.
2. Performance — provided it is measured objectively through an evaluation system that is actually used. One evaluation every three years with general comments is not enough.
3. Scope and responsibility — provided these are included in the job description at the time of allocation, not reconstructed retroactively.
4. Market-based remuneration — provided it is supported by an external source (sector benchmark, salary survey), not by “we felt this was in line with the market”.

What is not accepted in practice: vague references to “experience”, “potential”, “what they asked for upon recruitment” or “historically grown”. Anyone building their evidence file today around those kinds of categories is building a file that will not stand up in proceedings.

Four documents you should already be able to produce today

In practice, the evidence file required by the reversal of the burden of proof consists of four layers. None of these documents is new or exotic, but in many SMEs one or more are missing or not up to date.

1. A job classification based on the four legal criteria

What matters is not the job title, but the content of the role. The directive requires a classification based on four criteria: skills, effort, responsibility and working conditions. Two sales employees who at first sight appear to do the same work may, after proper classification, fall into different categories — and in that case a pay difference may be objectively justified.

Without a job classification, you cannot demonstrate in a dispute that the work is not of equal value. You then start the debate at a disadvantage.

2. A documented pay policy with pay bands

Pay bands per job category, with a minimum and maximum, and with the criteria determining where an individual employee falls within that band. The directive does not require those bands to be publicly disclosed, but it does require them to exist, to be based on objective criteria and to be applied consistently.

A pay policy that exists only in the managing director’s head has no evidential value. A pay policy set out in a document dated before a specific recruitment does.

3. An evaluation system that is actually used

Anyone wishing to rely on performance as an objective justification in a dispute must be able to demonstrate that performance is measured systematically, not only for the employee who is now complaining, but for everyone in the same category. Selective evaluations or years in which there was “no time” to carry out evaluations undermine the argument.

4. A procedure for information requests

When an employee asks in writing what colleagues in equivalent roles earn on average, you have two months to reply in writing. A company that still has to start working out its job classification at that point will not meet that deadline. Failing to reply leads to a legal presumption of discrimination, which further weakens the employer’s legal position.

A simple playbook — who receives the request, who calculates the figures, who signs the response and where the file is stored — is not in itself a burdensome document, but it makes the difference between replying on time and not replying. The calculation itself also requires correct input from payroll: bonuses, variable remuneration and benefits in kind must be taken into account, not only base salary.

What needs to be amended in existing employment contracts and regulations

In addition to building the evidence file, pay transparency also requires a review of existing contractual documents.

Confidentiality clauses regarding pay are null and void by operation of law, including in existing contracts. Renegotiation is not required (the clause automatically loses its effect), but standard contracts for new hires must be amended.

Provisions in the work regulations that prohibit employees from discussing their pay must be removed. At the same time, it is advisable to include in the regulations how a pay comparison can be requested, so that both the employee and HR know which procedure must be followed.

Vacancy templates must include a starting salary or pay range and must be worded in gender-neutral terms, not only for future recruitment but also as evidence of a consistent labour market practice.

The cultural dimension: what documentation alone does not solve

A watertight evidence file reduces litigation risk, but it does not solve everything. Pay transparency also sets a corporate cultural movement in motion that goes beyond what is legally required.

Employees will compare salaries among themselves — after all, confidentiality clauses are void — and will raise differences that previously went unmentioned. Managers must be able to have those conversations without slipping into defensive mode. It is not enough to be able to explain to an employee that their pay difference is objectively justified; that explanation must also come across as credible.

This requires managers to understand and be able to explain the logic of the pay bands, HR and management to apply the same justification, and the criteria to be recognisable to an employee in their own job description. Anyone who only starts thinking about how to justify a difference at the moment of a pay discussion loses the conversation — and possibly the proceedings afterwards as well.

How far along is your company today?

Would you like an initial assessment of where your company stands in terms of pay transparency? Take our free Pay Gap Scan at www.pkfbofidi.com/loonkloofscan In about three minutes, you will receive a score and three tailored priorities. The scan is completely anonymous. No personal data is stored.

How can PKF BOFIDI support you with this?

Pay transparency touches on employment law, HR policy, payroll and taxation at the same time. That is why our colleagues from Social Legal, Tax, HR Solutions and Payroll work together in an integrated way on this matter within our Human Capital practice. We support companies, among other things, with:

• building a job classification according to the four legal criteria, legally defensible and workable in day-to-day HR practice
• developing or adjusting a pay policy with pay bands and objective allocation criteria
• the legal review and amendment of employment contracts, work regulations and vacancy templates
• reviewing remuneration packages in consultation with our payroll and tax colleagues, so that adjustments to pay bands or variable remuneration are also embedded correctly from a payroll and tax perspective
• drawing up a playbook for information requests and providing guidance on specific files
• building the evidence file in light of the reversal of the burden of proof, before a dispute arises, not afterwards
• training for managers on how to conduct pay discussions

Do you have doubts as to whether your evidence file would stand up today in response to an information request or in proceedings? Or do you not know which documents are missing in your company? If so, feel free to contact one of our experts.

This article was written by Marie Dobbels (Senior Manager HR Solutions) and Lieven Goossens (Employment lawyer).