How data on pay of a non-binary person will have to be categorised?
Under a directive, employers will be required to collect, collate, and in certain cases disclose information on employees’ pay, according to sex. For example:
- upon a request submitted by an employee, an employer will be required to provide information on that employee’s personal level of pay and average pay, according to sex, for categories of employees that perform work of a similar kind;
- larger employers (in principle those with one hundred or more employees) will have reporting obligations. These employers will be required to submit periodical reports to a particular state authority containing information on pay, for example the gender pay gap, the median of that gender pay gap, or the percentages of male and female employees that receive additional remuneration package components.
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Meanwhile, it is fair to raise the question of how information on pay of a non-binary person (who identifies as neither male nor female) working for the employer is to be categorised, considering that the provisions described apply to men and women.
This issue has been left to the member states to decide by themselves. There is no reason why national law cannot expand upon the obligations described above, provided for in the directive, to include an obligation for the data that employers collect to include pay of people that are not male or female. In fact, this is unlikely to happen in Poland - within the legal meaning in Poland, there are two recognised genders, making it highly probable that employers will provide information on pay with respect to men and women. Given this situation, unless specific guidelines emerge on this question, for example provided by authorities, a non-binary person’s pay will most likely have to be categorised according to their gender under the law.