May 7, 2026
Category:
Pay TransparencyAuthor:
Katarzyna Jeziorek
/
associate in the labour law practice at the Łaszczuk & Partners law firm
Age is one of those factors that can look "objective" in a spreadsheet and become very difficult in court.
Under EU law, the starting point is clear: men and women must receive equal pay for equal work or work of equal value. That rule comes from Article 157 TFEU, is restated in Directive 2006/54, and is reinforced by Directive 2023/970, which links equal pay to pay transparency and stronger enforcement. The new Directive also makes clear that pay differences are only acceptable where they are based on objective, gender-neutral and bias-free criteria.
Not because age is irrelevant in the workplace. It plainly is. But because under EU law, age is not a free business variable. It is itself a protected ground. Article 21 of the Charter of Fundamental Rights of the European Union prohibits discrimination on grounds including age, and Directive 2000/78 creates a specific EU framework against discrimination based in particular on age in employment and occupation. That means an employer who says, "we pay older workers more because they are older," is not using a neutral pay factor in the ordinary sense. The employer is using a criterion that triggers age-discrimination law.
That does not mean age-based distinctions are always unlawful. Directive 2000/78 contains a narrow exception: differences of treatment on grounds of age in a given member state may be lawful if they are objectively and reasonably justified by a legitimate aim, including employment policy, labour market or vocational training objectives, and if the means used are appropriate and necessary. Directive 2000/78 even gives examples, such as special conditions for young or older workers, or minimum conditions of age, professional experience or seniority for access to employment or certain advantages linked to employment.
To illustrate situations in which differences in employees' remuneration based on age have been considered permissible, the Court of Justice of the European Union (CJEU) has, for example, ruled on severance payments granted in connection with termination of employment contracts. In Ingeniørforeningen i Danmark v Tekniq (C-515/13), the CJEU held that national legislation providing for non-payment of a special severance allowance to employees entitled to a retirement pension under a general pension scheme may pursue legitimate employment and labour market policy objectives. Its purpose is to protect employees with long service and to facilitate their reintegration into the labour market. Although granting of such an allowance is, in practice, linked to age, it does not constitute direct age discrimination.
A similar conclusion was reached in O v Bio Philippe Auguste SARL(C-432/14). The CJEU found that excluding young workers (namely students employed during school or university holidays) from the entitlement to a severance payment is compatible with EU law. The CJEU emphasised that the purpose of such a payment is to protect workers in a precarious employment situation, whereas holiday work is, by its nature, temporary and does not give rise to such insecurity. Consequently, the situation of these young workers is not comparable to that of other employees, which precludes a finding of age discrimination.
These examples, however, should be treated as exceptions to the general rule that differentiating employees' remuneration on the basis of age may, in itself, lead to direct discrimination.
Age is not the same thing as seniority or experience
This is where many pay discussions go wrong.
From a reward perspective, employers often want to reward what they call "maturity," "tenure," or "experience." But EU law draws an important distinction between age and length of service / professional experience.
That distinction matters because seniority can, in principle, be a lawful pay criterion even where it contributes to differences between men and women. In Cadman v Health & Safety Executive (C-17/05), the CJEU held that, as a general rule, using length of service is appropriate to reward experience that enables a worker to perform better, and the employer does not need to prove that in every individual case unless the worker raises serious doubts. By contrast, in Hennigs v Eisenbahn-Bundesamt (C-297/10) and Land Berlin (C-298/10) v Alexander and Mai, the CJEU made clear that using age to determine the pay step of a public-sector employee goes beyond what is necessary, even where the employer says it is really trying to reward professional experience. In other words: if what you mean is experience, use experience. Do not use age as a rough proxy.
That is the key legal lesson for employers under Directive 2023/970 as well. If the real business logic is seniority, relevant experience, competence, or performance, the pay system should say so clearly and operate on that basis. "Age" is the wrong shortcut , even if it is often directly associated with professional experience and length of service.
The CJEU's age-discrimination case law on remuneration is remarkably consistent.
In Hütter v Technische Universität Graz (C-88/08), the CJEU held that national legislation could not exclude periods of employment completed before age 18 when determining the pay step of contractual public servants. The CJEU treated that as unlawful age discrimination. The message was simple: a pay system cannot lawfully discount relevant work merely because it was done before a certain age, unless EU law age discrimination requirements are met.
In Hennigs v Eisenbahn-Bundesamt (C-297/10) and Land Berlin (C-298/10) v Alexander and Mai, the CJEU went further. It held that a collective agreement under which a public-sector employee's initial basic pay step was fixed by reference to age was precluded by EU age-discrimination law. The CJEU accepted that rewarding prior experience is, in principle, a legitimate aim. But it also said that allocating pay by age goes further than necessary and that a criterion based on length of service or professional experience, without resorting to age, is better adapted to that aim.
In Specht and others v Land Berlin i Bundesrepublik Deutschland (joint cases: C-501/12 to C-506/12, C-540/12 i C 541/12), the CJEU repeated the same logic in the civil-service context: a national measure that allocates the basic-pay step on recruitment on the basis of the civil servant's age is precluded. Again, the Court treated age-based pay placement as direct age discrimination.
There is one important nuance. In Hennigs v Eisenbahn-Bundesamt (C-297/10) and Land Berlin (C-298/10) v Alexander and Mai, the CJEU also accepted that a transitional arrangement may be lawful where a discriminatory age-based pay system is being replaced by a system based on objective criteria, and some effects of the old system are maintained for a limited period in order to avoid loss of income for existing staff. That does not validate age as a normal pay criterion. It only shows that the CJEU may tolerate carefully designed transition rules when moving away from an unlawful structure.
We also must not lose sight of seemingly neutral provisions in regulations and policies that indirectly contribute to pay discrimination based on age. The CJEU addressed this issue in Daniel Bowman v Pensionsversicherungsanstalt (C-539/15). In this context, the CJEU indicated that it is crucial to determine whether an apparently neutral criterion leads, in practice, to a particular disadvantage for a particular age group.
Directive 2023/970 also aligns with the CJEU's existing case law. Here, too, age cannot be used as a criterion for differentiating employees' remuneration. In fact, Directive 2023/970 strengthens the legal framework that requires employers to justify remuneration based on objective and gender-neutral criteria, and transparent pay structures.
For work of equal value, the Directive 2023/970 points employers to objective criteria such as skills, effort, responsibility and working conditions. It also says that pay progression criteria can include individual performance, skills development and seniority. Notice what is missing from that list: age as such, as well as other features that are related to personal characteristics of employees and remain protected by EU law. The legislative design pushes employers toward job-related and capability-related criteria, not demographic ones.
That is why, in practical pay-equity terms, age is usually a risky defence. If an employer wants to explain why one employee in a comparable role earns more than another, the safer and more legally coherent explanation is: relevant experience, seniority, competence, performance, responsibility, or working conditions. Those are the kinds of criteria EU law is built to assess.
In turn, the argument that "older workers earn more because they are older" can prove very risky for employers, both under Directive 2023/970 itself and national transposing laws, as well as due to discriminatory provisions. EU law (and, consequently, the laws of particular Member States) place particular emphasis on differentiating employees' situations without considering their personal characteristics. Age, unrelated to length of service, skills, or experience, constitutes precisely such a criterion, leading to unequal treatment. This can expose employers to discriminatory damages and reputational damage.
From an analytical perspective, differentiating pay based on age could be a convenient tool for justifying the differences introduced, especially since it is often directly linked to professional experience. From a legal perspective, however, it could lead to unjustified differentiation of employees based on a protected characteristic and lead to discrimination.
At workforce level, men and women may have different age profiles, different tenure distributions, or different career histories. That may help explain part of an aggregate gender pay gap. Directive 2023/970 itself shows that age matters as a monitoring dimension: Member States must provide annual gender pay gap data broken down by age, and Directive 2023/970 also expressly recognises intersectional discrimination, including situations where sex combines with another protected ground such as age. So EU law clearly treats age as relevant context.
A company cannot simply say: "men earn more on average because they are older on average," and assume the legal analysis ends there. The real legal question remains whether the pay system uses lawful, objective, gender-neutral criteria and whether those criteria are applied consistently. If the real driver is seniority, the system should reward seniority. If the real driver is performance, the system should reward performance. If the employer relies on age itself, it has stepped into age-discrimination territory and must satisfy the much stricter logic of Directive 2000/78.
In that sense, age is often more important as a risk lens than as a justification tool. Older women, younger women, or age-segmented groups may face compounded disadvantage. Directive 2023/970 expressly allows courts and authorities to take that combined disadvantage into account. So age may aggravate the legal analysis rather than save it. The issue of equal and transparent access to recruited positions is also important. If it turns out that the salary of one gender is higher on average due to their older age, it would be necessary to analyse whether the employer in a given organization provides access to positions at various levels on the same terms, and therefore whether the adopted practices or regulations lead to age discrimination at the recruitment and hiring stages.
Directive 2023/970 strengthens access to pay information, access to evidence, compensation, and enforcement. It also shifts the burden of proof onto the employer in certain situations where transparency obligations are not met. That matters because age-based reasoning is often vague, under-documented, or used as shorthand for something else. Under the new regime, shorthand is dangerous. A pay rule that cannot be cleanly documented as objective, gender-neutral and lawful will be harder to defend.
From an EU equal-pay perspective, the best answer is this:
Age may occasionally be relevant in employment law, but age as such is usually not a sound criterion for setting pay differences between workers doing the same work or work of equal value. It is a protected ground, and the CJEU has repeatedly struck down remuneration systems that use age directly. What EU law accepts far more readily is seniority, relevant experience, competence, performance, skills, effort, responsibility and working conditions-provided those factors are real, documented, consistently applied and free from sex bias.
So if the practical question is, "Can age justify pay differences, and therefore justify differences between women and men?" the legally safer answer is:
Age alone, in principle, does not constitute a valid ground for differentiating the remuneration of individual employees. What usually justifies pay differences is not age, but the lawful factors that age is sometimes wrongly used to approximate. Under Directive 2023/970, that distinction will matter more, not less.
