An equal pay claim often hinges on proving that a colleague doing similar work receives higher pay. Without concrete comparison numbers, the discrimination suspicion often remains mere theory. Yet the most persuasive salary data frequently reside in the works council office, and using them moves into a legal grey area. Recent rulings show that courts take differing approaches to data protection in equal pay claims, with significant consequences for your evidence.
equal pay claim and salary data: why comparison numbers matter
The Pay Transparency Act aims to guarantee equal pay for equal or equivalent work. In practice, the individual right to information under § 15 of the Act often falls short: employers can hide behind complex pay structures, and the information provided refers only to the median of the comparison group, not to individual colleagues. For a successful claim you usually need more than this statistical figure.
The case law of the Federal Labour Court (BAG) has lowered the hurdle for you in one respect: already a comparison with a single better‑paid colleague – the so‑called pair comparison – suffices to raise a presumption of pay discrimination. The employer can rebut this presumption, but practically the burden of proof then shifts to him. This lever makes individual salaries especially valuable for your claim.
Whoever knows a colleague’s exact salary holds the key to a successful equal pay claim. But where can these data be obtained lawfully? The direct route via the employer rarely succeeds, and data taken from the works council office are problematic under data protection law – as the following section shows.
the works council as a data source: legal grey area or permissible route?
Under § 80 (2) of the Works Constitution Act (BetrVG) the works council enjoys a comprehensive right to information that includes access to gross pay lists. These lists contain the salary details of every employee – highly sensitive personal data. The law permits the works council to view these lists solely for the fulfilment of its statutory duties, for example to monitor compliance with collective agreements or the general principle of equal treatment.
From this follows a strict purpose limitation: data that the works council receives for its supervisory function may not be used for private purposes of individual employees – not even for an equal pay claim. Article 5(1)(b) of the GDPR forbids processing for purposes other than those for which the data were collected. A works council member who passes on salary data to colleagues or uses them for his or her own claim violates data protection law.
This very constellation is currently occupying the labour courts. In a much‑cited case a claimant – herself a works council member – based her equal pay claim on a pair comparison with a male colleague. The salary data were demonstrably taken from the works council’s gross pay lists, and the colleague concerned had never consented to such use. The question whether the data had been lawfully obtained led to differing assessments in the various instances.
what courts currently accept in equal pay claims
The Federal Labour Court has, in a landmark decision (Judgment of 23 October 2025, Case 8 AZR 300/24), affirmed the admissibility of such salary data in the proceedings. The court held that neither the disclosure nor the use of the data in the process violates data protection rules – the processing by the parties and the court itself is lawful. Notably, the BAG did not address the question of how the data were obtained. Whether the claimant had lawfully acquired the data was simply not examined.
Quite differently, the Baden‑Württemberg Labour Court, after remittal (Judgment of 18 August 2026, Case 2 Sa 14/24), expressed “serious doubts” about the lawfulness of the data use and examined the origin of the data: it was undisputed that the salary data came from the works council’s gross pay lists – either the claimant herself had extracted them or another works council member had done so. The collection as such was not unlawful, but the purpose‑defiant use for the private claim was.
These divergent views show that, in equal pay claims, the question of whether salary data from the works council office can be used as evidence is presently highly controversial. While the BAG allows the use rather liberally, other courts impose stricter requirements. For you as an employee this means: you cannot rely on such data being automatically accepted in court – the legal situation is uncertain and depends on the concrete circumstances.
data protection versus pay transparency: where the limits for employees lie
The tension between data protection and pay transparency is programmatic: on the one hand the GDPR protects salary data as particularly sensitive information, on the other hand the Pay Transparency Act demands disclosure of remuneration structures. For employees this creates a contradiction that is hardly resolvable.
In principle you may use salary data that you have obtained lawfully – for example through your own information request to the employer or from publicly available sources – in an equal pay claim. Problems arise as soon as the data stem from internal sources such as the works council office and the affected colleague has not given consent. Here both the criminal provisions on breach of confidence and civil injunctive claims of the colleague come into play.
Experience shows that many courts only superficially examine data protection in equal pay claims, or ignore it altogether. For you this does not amount to a free pass: the employer can challenge the admissibility of the data with data‑protection arguments, and unlawfully obtained evidence can jeopardise the entire claim. Moreover, if you are warned or even dismissed by the employer for having used works council data, further labour‑law consequences may follow. In that situation a unfair dismissal claim is the appropriate means to defend your rights.
how to secure evidence for an equal pay claim in a legally sound way
The safest route to your salary comparison lies in the individual information request under § 15 of the Pay Transparency Act. Submit a written request to the employer and obtain the information on the median remuneration of the comparison group. This claim can be enforced in court without revealing secrets – the employer must furnish the data.
If you nevertheless need the salary of a specific colleague, obtain that person’s explicit consent to use the figure in your proceedings. Only with voluntary consent is the use lawful. Definitely avoid taking data from the works council office without permission – the risk that the evidence will be rejected or that you will make yourself liable is too high.
Another building block consists of salary data from public sources: wage surveys, collective agreements or job advertisements containing salary ranges can serve as indications. Although they cannot replace an individual proof, they support your argumentation. In addition, document your own remuneration meticulously, including all allowances, bonuses and special payments – only then can the comparability of the work be demonstrated concretely.
independent labour lawyers and process financing: your options in pay transparency claims
Equal pay claims are legally complex and require a careful strategy – especially regarding evidence. An independent lawyer specialising in labour law can assess whether your evidence will hold up in court and how you can obtain the data in a legally secure manner. He or she knows the current case law and can realistically evaluate the risks of a claim.
The costs of such proceedings are not insignificant: attorney’s fees and court expenses can quickly put a strain on the household budget. Litigation funding through RechtStark can provide relief here – it examines whether your case has sufficient prospects of success and, in the event of success, covers the costs in return for a share of the recovered amount. Unlike legal aid, it is not income‑dependent but purely oriented to the procedural risk.
Should the dispute lead to a mutually agreed settlement with a severance payment, you will find useful tips in our guide on how to successfully negotiate a severance.
Even if the data situation remains unclear, do not hastily relinquish your rights. Such a claim can change not only your own salary but also the remuneration structure of the entire company. With professional assistance and a solid financing arrangement you markedly increase your chances – and pave the way towards greater pay equity.
Note: This article is for general information purposes only and does not replace individual legal advice. For a free initial assessment of whether litigation funding may be an option for your case, you can contact RechtStark.