The EU Pay Transparency Directive, set to come into force in 2024, addresses pay transparency and aims to tackle the gender pay gap. The Directive will be implemented in the EU and will not apply to the UK (a result of Brexit), but UK producers with a foot in Europe should nevertheless be aware of the upcoming requirements. The text of the Directive has yet to be finalised, but the key provisions have been released.
Although a number of changes are being made, some main points to note are:
- Currently, private sector employers in the EU and UK with 250 or more employees must report their gender pay gap statistics annually, and employers under this size are exempt. Under the new Directive, the reporting requirement will apply to employers in the EU with 50 or more employees. In addition, where there is a gender pay gap of 2.5% or more which the employer can’t justify objectively, the employer will have to undertake a ‘pay assessment’ in cooperation with employee representatives (though it is currently unclear what this assessment will involve).
- The Directive allows employees and job applicants to access information about pay at their employer or prospective employer. Job applicants will be entitled to know the range of pay available for the role they are applying for and the objective criteria that the employer will use in deciding the rate offered to the successful candidate. Employees will be entitled to information regarding their individual pay level and average rates of pay at their employer, broken down by sex, and the criteria used to determine pay levels and ‘career progression’. Information will need to be provided to job applicants without having been requested and those already employed will be entitled to request the information on an annual basis. It remains to be seen how this will impact engagement of individuals on productions where generally there are not many cases of multiple individuals carrying out the same or largely similar role (at least not above the line).
- Applicants for jobs cannot be asked about their pay history. As above, it remains to be seen how this will impact negotiation of fees for cast and crew, for whom of course fees are negotiated based in part on their precedent and their “going rate”. However, producers will be prohibited from asking cast and crew or their agents about previous rates of pay.
The definition of ‘employee’ used in the Directive is wider than that usually seen in UK law. It includes those with worker status, meaning that individuals who provide services personally on a more casual basis will have the above rights. Producers should note that actors and crew members who are otherwise treated as self-employed may be ‘employees’ for the purposes of the Directive.
The takeaway is that film and TV producers engaging individuals to render services in the EU will need to consider any differing levels of pay between men and women and whether these can be justified on gender neutral grounds. No service time requirement has been mentioned, so even short-term engagements of individuals such as cast and crew for specific productions will be caught by the Directive, as well as more long-term employees of the company. Of course, things like the size of the role, previous credits, experience in the industry, skills and other gender-neutral factors will constitute objective criteria when determining pay levels. When setting pay rates, it will be good practice for producers to consider the reasoning behind the decisions made and any potential imbalance between remuneration for men and women performing the same or similar roles.
Each EU Member State will enact its own legislation to comply with the Directive, meaning different countries will apply the new requirements in different ways. Producers should ensure they are aware of the requirements in the specific country in which they are engaging someone to render services.
Although there is still a while before the Directive comes into force, it is worth producers with a presence (or an anticipated presence) in the EU familiarising themselves with the requirements now.