Supreme Court: Shifting the Burden of Assertion in Proving Unequal Pay

In its decision Case No. 21 Cdo 2960/2024, the Supreme Court (hereinafter the "SC") clarified exactly what an employee must assert when receiving lower remuneration for work than colleagues in a comparable situation.

Factual Background

The plaintiff worked for the defendant as a university lecturer (expert assistant). His fixed-term employment contract was extended several times. Before the final extension, he was required to undergo a selection process, which he found humiliating, particularly given that a younger female colleague did not have to undergo the same process. In addition to this alleged discrimination, he was financially disadvantaged (receiving lower bonuses compared to comparable employees or having personal allowances withdrawn), resulting in a significantly lower average wage than his colleagues.

Rules for Equal Pay

Wages are provided to employees based on the complexity, responsibility, and strenuousness of the work, the difficulty of working conditions, work performance, and achieved results. The employer is obliged to ensure equal treatment of all employees. The same applies to remuneration and the payment of discretionary wage components to employees in a comparable situation.

The amount of damages incurred by an employee due to unequal treatment in remuneration can be calculated as the difference between the wage of an employee who is paid more for comparable work and the aggrieved employee who receives a lower wage. If multiple employees are advantaged but their wages vary, the damages are calculated as the difference between the highest-paid employee and the aggrieved employee, provided they perform the same work or work of equal value.

Burden of Assertion and the Choice of Comparators

In civil proceedings, the plaintiff bears the burden of assertion (břemeno tvrzení) and the burden of proof (důkazní břemeno). In a dispute over damages arising from unequal pay, the employee is obliged to assert, and subsequently prove, facts indicating a breach of the employer's duty to ensure equal pay. Ultimately, this means the employee must identify suitable comparators—colleagues performing identical or comparable work who receive a higher wage than the plaintiff.

In a previous decision (21 Cdo 2000/2024), the SC's case law leaned toward the view that it is sufficient for the aggrieved employee to select three comparators who receive a higher wage, regardless of the remaining 35 employees who may be in a comparable situation but receive a lower wage. It is entirely at the plaintiff's discretion to choose suitable comparators for their case.

Shifting the Burden

In the case of the university lecturer, the lower courts required the employee to specify the exact activities performed for the employer by each individual comparator during the relevant period. The SC disagreed, ruling that this is not the employee's obligation. On the contrary, the burden of assertion shifts; it is up to the employer, as part of their procedural defense, to dispute the performance of identical or comparable activities by the individual comparators. The employer's goal is to prove that the work is not comparable or of equal value, justifying a difference in wage levels.

Conclusion

The Supreme Court's decisions provide more detailed guidance on how an employee can successfully meet the burden of assertion in proceedings for damages caused by an employer’s breach of legal obligations regarding equal pay. To meet this burden, the employee must identify suitable comparators, provide a summary description of their activities, and point out their wage levels. Subsequently, the burden shifts to the opposing party, and it is up to the employer’s defense to challenge those assertions.

This text was translated by AI