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Dutch Pay Transparency Takes a Step Forward: Three Takeaways from the Updated Draft Implementation Bill
On May 21, 2026, an updated draft bill to implement the EU Pay Transparency Directive (“Draft Bill”) was submitted to the House of Representatives. The updated text includes new clarifications following the Council of State’s advice dated April 1, 2026 – and three specific points deserve to be highlighted.
- No changes to previously proposed reporting deadlines and thresholds
The Draft Bill makes no changes to the previously proposed extension for the initial reporting deadline for larger employers, despite advice from the Council of State. The Council of State had advised the government to align the first reporting deadline to the dates in the Directive; however, the first reporting deadline for employers with 150 or more / employees remains June 7, 2028.
In doing so, the government prioritizes a workable implementation over a timely one as it expects the first report (in 2028) to require more preparation for employers than later reporting cycles.
- Position on non-binary individuals
The Council of State noted that the original language of the Draft Bill was insufficiently clear on how pay of non-binary individuals is involved in the reporting obligation that focuses on pay gaps among women and men.
The Draft Bill now reiterates that employers do not have to report on the pay differences of non-binary individuals. This is because the Directive is aimed at promoting equal pay for women and men. Non-binary individuals do, however, need to be included in the count to determine the size of the organization. This calculation is relevant to determine, among other things, whether an employer is obliged to submit a mandatory report. Non-binary individuals should also be included in the count to determine the proportion of women and men within a certain “equal work” category.
The Bill clarifies that it will be left to the individual employer to determine employees identifying as non-binary for the purpose of the Bill. As noted, the only thing the government has indicated is that employees who identify as non-binary and have made this known to their employer, and who are therefore recorded as such in the records, are in principle excluded from the reporting on pay gaps between men and women. The employer may record gender in the records based on identity documents that are usually required to be provided, such as a passport. This is necessary to comply with the proposed transparency obligations. Individuals who have registered as non-binary are free to indicate to the employer whether they wish to be included as male or female for the purposes of the pay reporting. The employer may not make this mandatory, however. This opens the door for some administrative work on the part of the employer to assess this on a case-by-case basis.
- New guidance on GDPR tensions
The Council of State raised General Data Protection Regulation (GDPR) privacy concerns on situations where responding to the right to request information may result in providing average pay information that may be traceable to individuals, especially in small comparison groups.
As a base measure, the Directive allows member states to restrict access to certain pay information where the information could reveal the pay of individuals as personal information. The Directive suggests one solution, for example, would be disclosing the pay information to worker representatives instead of directly to the employees.
In a surprising move, the government decided not to implement the above solution in the Draft Bill. The government is taking the position that the Draft Bill’s existing approach to simply provide the employee with the mandatory pay information is GDPR-compliant and that an indirect disclosure weakens the employee’s information position. This would result in employees not being able to effectively exercise the right to equal pay.
Consequently, the government gives more weight to pay transparency and the right to equal pay over GDPR concerns. The government does note, however, that any data traceable to an individual may only be used to exercise the right to equal pay.
The government takes a rather hardline stance compared to other EU governments, as it plainly accepts that pay information may be traceable to individuals to ensure the effective exercise of pay transparency rights. This hardline stance is also remarkable considering the Dutch Authority of Personal Data (“AP”) offered severe criticism with regards to the previous version of the Draft Bill. So far, the AP has not yet responded to the updated version of the Draft Bill, but it is unlikely the AP will consider the Draft Bill GDPR-compliant, despite the government’s insistence that it is. While awaiting the response of the AP, it seems employers may need to be concerned about dueling compliance obligations.
The Bill is now to be debated in substance by the House of Representatives and, after that, the Senate. Additional changes can be made following debate.
At this time, we recommend that employers continue to prepare to comply with the baseline requirements of the Directive. We do not recommend that employers make any significant changes to align with the Draft Bill until more clarification is available.
