May an employer grant a different salary increase to employees who perform the same duties?

According to a ruling by the Den Bosch Court of Appeal on 29 March 2022, this question can be answered in the affirmative in the present proceedings.

The employee is working as a Customer Management Agent (“CM Agent”) when the employer decides to implement a salary increase in the Customer Service salary scales (“CS Scales”). However, this particular employee does not receive the salary increase due to the fact that the salary increase is part of a package of employment conditions which she previously rejected because she preferred another package of employment conditions that already existed prior to a certain merger. In this case, the employee claims that the salary increase should nevertheless be granted to her.

The employee argues that (i) she performs the same duties under equal circumstances as the CM Agents classified in the CS scales, (ii) there is no objective justification for not granting her the same salary increase and (iii) this withholding of the same salary increase would also lead to a result that was unacceptable according to the principles of reasonableness and fairness.

The District Court rejected the employee's claim. In appeal, the Court of Appeal ruled in line with the legal framework provided by the Supreme Court in the Parallel Entry judgment. This judgment forms the legal framework for cases in which equal salary in general is at stake, without a discrimination ground being involved. In the Parallel Entry judgment it was ruled that although equal salary for equal work is an important principle, differences are only not permissible if this is unacceptable according to the standards of reasonableness and fairness.

Due to the fact that in this case there is in itself no ground for discrimination (such as for example on the grounds of religion, gender or age), the question whether this employee is entitled to the same salary increase should be assessed with restraint. Although it is established that the employee performs the same duties as the other CM Agents, there is no question of equal circumstances since she has a more favourable package of employment conditions than the average CM Agent. It is therefore not unacceptable that the employee is not entitled to a salary increase. In addition, there is an objective justification for the difference in remuneration since the employee indicated that she wants to keep her current package of employment conditions.

The principle that the same duties must be rewarded equally is a valid one, but differences in salary without any discrimination are only not permissible if they are unacceptable according to standards of reasonableness and fairness, which must be assessed with restraint. This is especially the case when it concerns primary employment conditions, as employees can rarely be compared with each other (think of differences in experience, expertise, performance).

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