Equal pay: one better-paid colleague is enough for comparison

Equal pay: one colleague is enough

If a male colleague earns more than a female employee for the same or equivalent work, there is a presumption of discrimination on grounds of sex. A single colleague is enough for this. The size of the comparison group and where the median pay lies are irrelevant to this presumption. That is what the Federal Labour Court (BAG) decided in its judgment of 23 October 2025 (case number 8 AZR 300/24).

Lawyers call this the pair comparison, that is, comparing the female employee with exactly one better paid colleague. Presumption means: the court assumes discrimination until the employer proves the opposite. If the employer fails to do so, it must pay the female employee the same pay the colleague receives. In the view of the Federal Labour Court, this is what the case law of the European Court of Justice requires.

The case: salary data from the intranet

A female employee demanded that her employer pay her the same as certain male colleagues retrospectively, and for several pay components. She had taken the figures from a dashboard on the company intranet. That dashboard serves to provide information under the Pay Transparency Act (Entgelttransparenzgesetz), the law that gives employees information about the pay of comparable colleagues. So the employer itself supplied the material for the claim brought against it.

The colleagues she used for comparison earned more than the median of all men at the same hierarchy level. The median is the value at which one half of the group earns more and the other half less. The employer countered that the colleagues did not perform the same or equivalent work. Besides, the difference was due to shortcomings in the claimant's performance. That was also why she was below the median of the female comparison group.

Round one: one colleague is too few

The Baden-Württemberg Regional Labour Court dismissed the principal claims. A single comparator of the opposite sex was not sufficient for a presumption of discrimination. Given the size of the male comparison group and the median pay of both sexes, there was no preponderant probability of discrimination on grounds of sex. What mattered for the court was therefore the view of the comparison group as a whole rather than of an individual colleague. The court did at least award the claimant, for individual pay components, the difference between the median for women and the median for men.

Why the Federal Labour Court disagreed

The Eighth Senate set this judgment aside in part and referred the case back to the Regional Labour Court for a new hearing. A preponderant probability of discrimination is not required in an equal pay claim. Such a requirement would be incompatible with EU law. For the presumption it is enough if the female employee sets out and, in the event of a dispute, proves that her employer pays a colleague more for the same or equivalent work.

With the figures from the dashboard, the claimant had done so for one comparator. The Regional Labour Court must now examine whether the employer has rebutted the presumption. The Federal Labour Court expressly notes that the employer's pay system lacks transparency. Both sides may supplement their submissions.

What companies now have to prove

For employers, this shifts the burden. As soon as a female employee names a better paid colleague doing the same or equivalent work, the company must explain the difference. Statistics are of no help here. Pointing out that the comparison group is large or that the median figures for both sexes are close together does not rebut the presumption.

What is needed are objective, sex-neutral reasons for the specific difference, such as longer professional experience, more years in the position or documented differences in performance. Such reasons only convince a court if they can be evidenced. Anyone who negotiates salaries case by case and records nowhere why one person gets more than another is left empty-handed. A pay system that nobody can see through certainly offers the employer no protection.

Round two: the men's median counts

After the case was referred back, the Baden-Württemberg Regional Labour Court ruled again on 18 August 2026 (2 Sa 14/24). According to press reports, the case concerned the years 2018 to 2022. The claimant did not get the salary of the colleague she had named. The employer managed to rebut the presumption for this one comparison: the colleague had been at that hierarchy level considerably longer and his salary was well above the median of the male comparison group.

As against the other male colleagues at the same level, however, the employer could not rebut the presumption. The court therefore awarded the claimant the difference between her salary and the median of the male comparison group. Press reports mention back pay of 210,000 euros. For virtual shares, she received compensation up to the average of her comparison group across both sexes. According to those reports, the Regional Labour Court did not allow an appeal on points of law.