To be considered as having equal value, the work carried out by employees must require of them a comparable set of skills:
- professional knowledge evidenced by a degree, diploma or professional practice;
- skills resulting from acquired experience;
- responsibilities; and
- physical or mental workload.
Given that the Luxembourg legislature was largely inspired by the French provisions on equal pay for men and women (Article L.3221-4 of the French Labour Code), it is possible to invoke French case law.
The Court of Cassation (Cass. soc., 6 March 2007, No 04-42.080) decided that belonging to “the same professional category provided for by the collective agreement governing their employment” is not sufficient to conclude that the employees concerned perform work of equal value.
Thus, to assess whether employees perform work of equal value, it is necessary to examine the functions “actually performed” by the employees, taking into account criteria such as professional knowledge, experience, responsibilities and physical or mental workload to verify whether they are in comparable situations.
In another case, the Court of Cassation (Cass. soc., 6 July 2010, No 09-40.021) held that a human resources manager must receive the same remuneration as the other directors of the company, although a priori their functions are different, referring in particular to “an identity of hierarchical level, classification, responsibilities, their equivalent importance in the operation of the company, their position also requiring comparable capacities and representing a mental workload of the same order”.
Along the same lines, Luxembourg case law considers that “the central element of comparison is the work actually performed by the employee” and that “in examining the question of the comparable situation, it is of scant importance to ascertain on what basis the employee was engaged. Above all, it is important to know the nature of the work carried out” (Court of Appeal, 14 July 2016, No 41026).