Ombudsman for Equality

Same work and work of equal value

Job descriptions as the basis of assessments

According to the Finnish Equality Act, pay comparisons can be carried out between employees performing the same work or work of equal value for the same employer. The prohibition of pay discrimination also applies to situations where lower pay is given for a mode demanding role than for a less demanding one if the other characteristics of pay discrimination are present.

Assessments of whether work is the same or of equal value are based on job descriptions and the demands that they impose on employees. According to the preparatory documents relating to the Finnish Equality Act, comparisons must take into account the nature and content of the work, and the associated working conditions. Assessments must be based on the actual working conditions of individual employees and not on generic job descriptions or employment contracts, if these differ from the reality.

Assessments of whether work is the same or of equal value must not factor in any perceived effects of personal characteristics or work performance of individual employees. However, these factors can constitute acceptable reasons for remunerating employees differently for the same work or for work of equal value.

Same work vs. work of equal value

'Same work’ refers to two positions that correspond or almost correspond to each other. In terms of the assessment, what matters are the differences between the two: the nature of the differences and their frequency.

Pay comparisons can also be carried out between two positions involving different kinds of work if the two can be considered of equal value in terms of complexity. The nature of the work determines the factors that are taken into account when assessing whether two positions are of equal value. A comparison of job descriptions may occasionally be enough even when comparing different kinds of work. If the two kinds of work are very different by nature, the assessment must be based on the different factors that inherently contribute to the complexity of each position. Two different kinds of work can be considered of equal overall value even when they are made up of different elements of complexity.

Systems for assessing the value of work

In terms of the implementation of the principle of equal pay, remuneration should ideally be based on a system for assessing the value of different positions. However, the use of these kinds of systems is not laid down in equality legislation.

Even when remuneration is based on a value assessment system, compliance with the provisions of the Finnish Equality Act is not guaranteed. The system itself may be discriminatory or it can be applied in a discriminatory manner. Discrimination can arise from the way in which the characteristics of roles that are traditionally either male-dominated or female-dominated are factored in and the value that is given to these characteristics.

The European Court of Justice has defined the principles that work classification and assessment systems should meet in order to not be discriminatory as follows (Rummler, 237/85):

1. The criteria governing pay rate classification must ensure that the work which is objectively the same attracts the same rate of pay whether it is performed by a man or a woman;
2. The use of values reflecting the average performance of workers of one sex as a basis for determining the extent to which work makes demands or requires effort or whether it is heavy constitutes a form of discrimination on grounds of sex;
3. In order for a job classification system not to be discriminatory as a whole, it must, in so far as the nature of the tasks carried out in the undertaking permits, take into account criteria for which workers of each sex may show particular aptitude.

Right to equal pay regardless of assessment systems

Employees are entitled to demand equal pay for the same work and for work of equal value on the basis of equality legislation, regardless of whether employers use a work classification and assessment system.

As a last resort, employees can take their claims to court in order to determine whether their work is of equal value to work performed by other employees. Employees must be able to provide factual proof that their work is the same or of equal value to the work performed by the other employee in question.

Other criteria for comparisons

The Finnish Equality Act aims to prevent situations where employees find themselves in an unfavourable position as regards remuneration ‘on the grounds of sex or gender.’ In most cases, pay comparisons are carried out between two people of opposite sexes. In other words, a woman can compare her remuneration to that of a man, and vice versa. Whenever differences in pay are down to pregnancy, childbirth, parenthood or family commitments, pay comparisons can also be carried out between employees of the same sex (see ‘ Parental leave and remuneration’). Differences in the pay of male-dominated employee groups and female-dominated employee groups can also constitute pay discrimination under the Finnish Equality Act.

Comparisons with better-paid employees

The right to pay comparisons is not limited to employees whose work is grouped into the same level of complexity or the same level of pay according to collective agreements. Employees can also compare their remuneration to that of employees who are grouped in a higher pay bracket if they can prove that their work is of the same value as the work of the better-paid employees.

Time-based comparisons

Pay comparisons are not dependent on simultaneity. Remuneration can also be discriminatory in situations where employees find themselves in a less favourable position than people of the opposite sex who were formerly employed by the same organisation. In other words, employees can also compare their remuneration to that of their predecessor. Pay comparisons between permanent employees and their substitutes (during parental leave or sick leave, for example) are also possible.

Same employer or ‘a single source’

According to the Finnish Equality Act, equal pay must be given for equal work performed by people working for the same employer. If employers have several offices or branches, employees can also compare their remuneration to that of the employees of another office or branch.

According to the European Court of Justice, Article 141 of the Treaty establishing the European Community applies to any inequality in pay that derives from ‘a single source.’ The European Court of Justice has stated that employees who turn into subcontractors or temporary employees performing the same work that was formerly governed by their employment contracts can compare their remuneration to that of the in-house staff of their former employer.