A recent ruling from the social chamber of the Supreme Court, dated November 21, 2024, establishes that in the salary record, regulated by article 28.2 of the Workers’ Statute (ET), it is not mandatory to include data that identifies remuneration individualized of the worker, but rather the “average values” and “disaggregated by sex”.
The objective of said precept would be to reveal whether, through these values, situations of unjustifiable inequality between men and women could arise.
Given that these average values of remuneration must be included, there is no legal protection to require that the registry include data that allows knowing the remuneration of a specific worker.
This is especially relevant, the resolution analyzes, considering the personal data protection regulations given that the opposite would require that it be unequivocally detached from a norm with the force of law and that, in addition, said norm established the necessary guarantees to avoid disclosure. of personal data.
However, article 28.2 ET provides that ‘average values’ are included in the remuneration register.
If the legislator wants this individualized data to be included, it should have been provided more clearly and with due guarantees.
In the case examined, the unions filed collective dispute claims requesting that the company provide them with all the remuneration data, even for professional groups or jobs in which there is only one person assigned.
The National Court upheld this claim, forcing the company to provide the remuneration data of the entire workforce, regardless of the number of workers in each position and professional group and regardless of the number of workers by sex.
However, our High Court corrected and reversed the aforementioned ruling and dismissed the collective conflict claims of the complaining union centers.
To this end, among other arguments deployed, the ruling highlights that the union approach had not alleged the need for individualized data to be necessary to achieve equal pay between women and men, without prejudice to the fact that such remuneration is taken into account. when setting the overall amount of remuneration in the company.
Chamber IV determines that what is relevant in this case is to know whether the salaries of women, compared to those of men, are separated from the equalizing purpose and not what the individual salary of a given man or woman is.
The aforementioned ruling recalls that the average values to be included in the registry must be distributed by professional groups, professional categories or jobs that are equal or of equal value. Consequently, the salary record that the company is obliged to keep is the average values of the remuneration of its staff.
These values must be ‘disaggregated by sex’ and distributed by professional groups, professional categories or jobs of equal or equal value.
Article 28 ET is titled equality of remuneration based on sex, which shows that the salary record is at the service of this equalizing purpose, which is why the average values of remuneration must be disaggregated by sex.
The Chamber limits the content of the ruling to the interpretation of article 28.2 ET and 5 of Royal Decree 902/2020, of October 13, on equal pay between women and men, ruling out focusing the issue on whether or not there has been conformity. union history with the competition model and professional career in force in the company, nor, even, whether it is necessary to know the remuneration data in the case indicated in the appeal to detect possible indirect discrimination.
The rapporteur also comments that, although Directive (EU) 2023/970 of the European Parliament and of the Council of 10 May 2023, which reinforces the application of the principle of equal pay between men and women for the same job or work of equal value through pay transparency measures and mechanisms for compliance – has already come into force, States have until June 7, 2026 to transpose it, This rule being, where appropriate, the one that could motivate an eventual review of the issue.
Finally, the ruling rules that the registration obligation is autonomous from the equality plan agreed upon by the company and the unions and from the remuneration audit.
In short, what is important is the global comparison between the salaries of women and men, and not the individualized remuneration of an employee, whether manager or not, so that it can be known whether the salaries of women, compared to those of men , are separated from the purpose pursued by the norm.
#Salary #record #Workers #Statute #limitations #Data #Protection #Law
