Access to Pay Register Data or Equality Plan

Can trade unions request all data from the Pay Register?

Logic appears to have prevailed. Data protection rules prevent a company from being required to disclose data to the extent that the individual behind a particular salary could be identified.

The new ruling 1302/2024 of the Supreme Court has established that there is no legal obligation requiring a company to include individualised pay data that would directly identify the salary of a specific worker. Current legislation (Article 28.2 of the Workers' Statute and Royal Decree 902/2020) requires the inclusion of mean and median values, but not individual salaries.

In other words, personal data protection takes precedence, and any processing of information that directly identifies individual salaries requires a clear legal basis and additional security measures — neither of which current legislation sets out in sufficient detail.

BACKGROUND:

We examined in depth here the obligation to provide pay data to a company's employees, its works council, employee representatives, or trade unions, for the preparation and consultation of the pay register and equal pay audit (VPT) used in drawing up Equality Plans.

The following is the analysis we had carried out at Conesa Legal, up to this point, on doctrine, legislation and case law:

DO I HAVE TO DISCLOSE SALARY DATA FROM THE EQUALITY PLAN TO EMPLOYEES OR THEIR REPRESENTATIVES?

What does the law say about the obligation to provide information to employee representatives?

1.- Obligation to provide all data under Organic Law 3/2007 on effective equality between women and men

Article Article 46 of Organic Law 3/2007, of 22 March, on effective equality between women and men, sets out the following regarding the content of company equality plans:

"The diagnostic assessment shall be carried out within the NEGOTIATING COMMITTEE of the Equality Plan, for which purpose the management of the company shall provide:

• ALL data from the Pay Register governed by Article 28, paragraph 2 of the Workers' Statute.

1. Recruitment and hiring process.
2. Job classification.
3. Training.
4. Career progression.
5. Working conditions, including the gender pay audit.
6. Responsible exercise of rights relating to personal, family and working life.
7. Female under-representation.
8. Remuneration.
9. Prevention of sexual harassment and harassment on grounds of sex.

2.- Obligation to provide information under the Workers' Statute:

The right of the WORKS COUNCIL to consult the pay register data appears clearly established under Article 64 of the Workers' Statute, which provides that "The works council shall have the right to be informed and consulted by the employer on any matters that may affect employees" and that:

"It shall also have the right to receive information, at least annually, on the application within the company of the right to equal treatment and equal opportunities between women and men, which must include the register provided for in Article 28.2

as well as data on the proportion of women and men at the different professional levels, and, where applicable, on any measures adopted to promote equality between women and men within the company and, where an equality plan has been established, on its implementation. (Article 64.3 of the Workers' Statute)

All of this is because the works council has both the right and the duty to:

"monitor compliance with and application of the principle of equal treatment and equal opportunities between women and men, particularly with regard to pay" (Article 64.7.a.3 of the Workers' Statute)

For its part, Article 4 provides that "Employees have the following fundamental rights, with the scope and content established by the specific legislation applicable to each: g) Information, consultation and participation within the company"

The right of access to the pay register for employees and their trade union representatives

Furthermore, Article 28.2 of the Workers' Statute provides that:

"EMPLOYEES have the right to access, through the company's legal employee representatives, the company's pay register."

The first point to note is that the law refers to the right to access: it does not in any way establish a right to possess, obtain, or retain a copy of that register.

In other words, employees and/or their representatives may access the register to verify that it is in order or to check that the gender pay gap has been correctly calculated. However, in accordance with the Pay Register Guide published by the Ministry of Equality, which you can download at this link:

"Where an employee requests access to the register in the absence of LEGAL EMPLOYEE REPRESENTATION, the information provided by the company will not consist of the averaged figures for the actual remuneration amounts recorded in the register; instead, the information to be provided will be limited to the percentage differences in the averaged remuneration of men and women, which must also be broken down by the nature of the remuneration and the applicable job classification system.

In companies WHERE LEGAL EMPLOYEE REPRESENTATION EXISTS, access to the register shall be provided to employees through that representative body, which shall be entitled to review its full contents."

What does the EU Directive on pay transparency and disclosure of salary data say?

The EU Pay Transparency Directive (see EU information here), not yet published, establishes new pay transparency rules across the EU.

The aim is to combat gender-based pay discrimination and reduce the gender pay gap in the EU, working towards:

• Empowering workers to demand equal pay.
• Reducing the gender pay and pension gap.
• Greater fairness and equity in European workplaces.

Key points:

1. Transparency Obligations:

   • Companies must provide information on salaries and take action if the gender pay gap exceeds 5%.
   • Employers must inform workers of:
     • The starting salary or salary bands for advertised positions.
     • The pay criteria and career progression criteria, which must be objective and gender-neutral.
   • Asking job applicants about their salary history will be prohibited.

2. Annual Reporting:

   • Companies with more than 250 employees will be required to report annually on their gender pay gap.
   • Smaller companies will do so every three years, except those with fewer than 100 employees.

3. Action on Inequality:

   • If the pay gap exceeds 5% without objective justification, a joint assessment with employee representatives will be required.

4. Compensation and Damages:

   • Workers who have suffered pay discrimination will be entitled to claim compensation for the difference in pay (back pay, bonuses, etc.).
   • The burden of proof will lie with the employer, who must demonstrate that no breach of the rules has occurred.

5. Expanded Scope:

   • The concept of intersectional discrimination is introduced (the combination of multiple forms of inequality, such as gender and ethnicity).
   • The needs of workers with disabilities are also taken into account.

6. Context and Justification for these measures:

   • The average gender pay gap in the EU stands at 13%, which has a long-term impact on women's quality of life and their risk of poverty.
   • The COVID-19 pandemic exacerbated the workplace challenges faced by women, highlighting the urgency of addressing this issue.

7. Timeline:

   • 04/03/2021: Proposal by the European Commission.
   • 15/12/2022: Agreement between the European Parliament and the Council.
   • 24/04/2023: Adoption of the Directive by the Council.
   • Entry into force following publication in the Official Journal of the EU, with a three-year transposition period for member states to adapt their national legislation.

Legal Doctrine

in accordance with the article by the doctor of Employment and Social Security Law at the Universitat Jaume I (Castellón, Spain), Santiago García Campá, in which he assesses the ruling of ruling of the National Court 23/2023, of 23 February,

"A careful reading of the ruling leads to the conclusion that it does not establish a new general obligation on companies to transmit individualised data in the pay register to workers' representative bodies, but rather only permits an exception to the general rule against disclosing individualised salary figures in the pay register, and only where:

a) such data must be made available to the equality plan negotiating committee during the diagnostic phase,

b) to the extent that the committee or any of its members requires them in order to carry out the pay audit, and

c) provided that the individualised pay data requested are functional for assessing the existence of pay discrimination in roles of equal value."

PRIOR CASE LAW

There is as yet no consolidated case law from the Supreme Court clarifying whether companies are required to provide each and every item of salary data held in the pay register, let alone to hand it over.

• There are, however, judgments — such as that of the National Court, Social Division, ruling 126/2023 of 17 Nov. 2023, Rec. 226/2023 — which ordered the company to pay a fine of €80,000 for infringement of trade union freedoms, on the grounds that it was unacceptable for the employer to consistently withhold the information requested by employee representatives for the purposes of drawing up the equality plan, as well as the pay register and job evaluation.

• The ruling of the National Court, Social Division, ruling 23/2023 of 23 Feb. 2023, Rec. 355/2022, for its part, held that the fact that an employee and their remuneration may be identifiable cannot serve as grounds for withholding that information, since such data processing is necessary for compliance with a legal obligation. The legitimate purpose justifying disclosure of the data is to ensure that the principle of equal treatment and equal opportunities between women and men is applied within the company, and to prevent any direct or indirect discrimination on grounds of sex.