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The AN establishes that companies cannot hide salaries to prevent discrimination based on sex

Points out that equal treatment prevails regarding data protection in cases where there is only one person in a position.

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The AN establishes that companies cannot hide salaries to prevent discrimination based on sex

Points out that equal treatment prevails regarding data protection in cases where there is only one person in a position

MADRID, 8 Mar. (EUROPA PRESS) -

The National Court has resolved that companies must provide the remuneration data of their workers even when there are few people in a position or the individual salary of a worker can be identified because otherwise the current legislation is violated by depriving the registry and the remuneration audit "of elements necessary to identify possible indirect discrimination based on sex in terms of remuneration".

This is reflected in a ruling on February 23, to which Europa Press has had access, in which it agrees with the CGT union against the company Global Sales Solutions (GSS). "It is clear and evident that the business practice that is denounced in which data regarding certain jobs are mutilated because they are only occupied by people of one sex or because the remuneration received is identifiable, violates current legislation since it deprives both the registration as well as the remuneration audit of elements necessary to identify possible indirect discrimination based on sex in terms of remuneration", he asserts.

For this reason, the Social Chamber, presentation by magistrate Ramón Gallo, declares the obligation of the company to provide the remuneration data "in cases where there are one or two workers of one of the sexes (regardless of the existing workforce in the other sex) and in those situations in which in one of the sexes there is no working person and in the other there is". And it orders the cessation of this business practice "consisting of the absence of remuneration information as a result of the previous practices."

The company in question argued before the lawsuit that it had complied with legal obligations, and stressed that in positions where there are only men or women "it is not necessary to provide the remuneration data since there can be no salary discrimination." It added that in the event that the worker's remuneration was easily identifiable "the Organic Law on Data Protection would be violated."

The court finds that there is a real and current controversy between the social party and the company regarding the data that is deemed necessary to appear in two documents that GSS had to make available to the legal representation of the workers to verify the existence or non-existence of discrimination by reason of sex in remuneration matters.

And he points out that the fact that these documents may be relevant for the preparation of the diagnosis of the situation, prior to the preparation of an Equality Plan, and that this diagnosis was approved by the majority of the workers' representatives ( other unions), does not prevent CGT from demanding that the company "said documents (...) comply with the law".

After this, the Chamber frames the matter in determining whether the company was obliged to reveal the average and median remuneration in all jobs, even when dealing with jobs in which only workers of a single sex provide services or in which there is only one worker, or if, as alleged, the legislation on data prevention exempts them from providing such obligation.

It notes that in order to address the issue, it must be made clear that the preparation of a remuneration record and the salary audit "are obligations of a documentary nature that were introduced into our legislation by Royal Decree Law 6/2019 of March 1, on urgent measures to guarantee equal treatment and opportunity between women and men in employment and occupation".

Thus, the court asserted that both the remuneration registry and the remuneration audit are documents whose purpose is to guarantee the principle of equal treatment and non-discrimination based on sex among workers of the same company.

And that its purpose is to "identify and ward off the existence of indirect discrimination based on sex in order to guarantee that jobs of equal value are remunerated with the same remuneration, the purpose of which is to guarantee the principle of remuneration transparency, that is, , the identification of discrimination, where appropriate, both direct and indirect, particularly those due to incorrect assessments of jobs".

In line, he points out that the fact that a job is only occupied by people of the same sex "does not imply that there are no others whose tasks can be considered of equal value that can be occupied by people of both sexes or just another ". And it adds that "the concept of work of equal value is not a concept that must be unilaterally determined by the company, nor by a third party, but rather an indeterminate legal concept, and, therefore, susceptible to being considered both by the social part, as well as by the company, and in the last case subject to determination in court".

After this, it addresses the problem of data protection when there is only one person in a specific job. And it establishes that if there is a legitimate purpose, which is to guarantee the application within the company of the principle of equal treatment and opportunities between women and men, "the individual right of the owner of the data must decline". However, he qualifies that there must be an obligation on the part of the legal representation of the workers to keep confidentiality regarding the data provided.