Companies must hold workplace elections in order to fulfil their obligation to implement an Equality Plan. It appears that drawing up an Equality Plan unilaterally, or through representatives appointed via Article 41 of the Workers' Statute, is null and void:
Written by Josep Conesa
Employment and insolvency lawyer
Equality plan negotiated via Article 41 of the Workers' Statute declared null and void:
The Supreme Court, in its recent ruling of 26 January 2021 (case 50/2020), held that it is not possible to establish a specific committee to negotiate the Equality Plan within the company.
That ruling confirms an earlier line of case law from the National Court, dated 10 December 2019 (case 163/2019), which had already declared the company's Equality Plan null and void on the grounds that the committee established under Article 41 lacked the standing to negotiate it.
This case law rests on the principle that Article 41 of the Workers' Statute is intended to
"address the negotiation of certain forms of collective bargaining linked to internal and external flexibility measures, such as the consultation periods for geographical mobility (Art. 40 Workers' Statute) and collective substantial modifications (Art. 41 Workers' Statute), suspension of contracts and reduction of working hours (Art. 47 Workers' Statute), collective dismissal (Art. 51 Workers' Statute) and the non-application of collective agreements (Art. 82.3 Workers' Statute), without such ad hoc representation being available for the negotiation of collective agreements"
See also the ruling of the Supreme Court at this link
Negotiation with the Works Council or staff representative is required:
Notwithstanding any standard templates, it should be noted that an Equality Plan is null and void if it has not been negotiated with employee representatives. This is affirmed by the Supreme Court case law in the following rulings:
- ruling 403/2017 of 9 May 2017, Appeal No. 85/2016 on collective bargaining, in which the court declared null and void an equality plan unilaterally adopted by the company, on the grounds that the works committee of the company that approved it, despite representing the majority workplace, was not the only such committee within the company. The plan in question must be approved by following the collective bargaining process, particularly in companies with more than 250 employees. The negotiating committee was not constituted in the manner required by statute and by the applicable collective bargaining agreement. The company had not exhausted all available dispute resolution mechanisms and, accordingly, unilateral implementation was not permissible. The Supreme Court dismissed the cassation appeals brought against the ruling of the National Court and upheld the annulment of the equality plan implemented by the company.
- ruling 832/2018 of 13 Sep. 2018, Appeal No. 213/2017 on the nullity of an equality plan due to the company's infringement of the right to trade union freedom, specifically the right to collective bargaining. The drafting of the equality plan had proceeded solely at the initiative of the workers' representatives, who had to rely on interventions by the Labour Inspectorate to keep the process moving; without those interventions, the company would not have continued negotiations nor provided the documentation requested. It was established that the workers' representatives had maintained a consistent and sustained willingness to negotiate, whereas the company had not. The Supreme Court dismissed the appeal of cassation brought against the ruling of the National Court and upheld the declaration of nullity of the equality plan drawn up by the company and the finding of a breach of trade union freedom.
The Supreme Court has also held that there is no nullity in an equality plan where a trade union that did not participate in the collective bargaining of the collective bargaining agreement is not permitted to take part:
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ruling of 24 Jan. 2012, Appeal No. 22/2011 on the right to negotiate and collective dispute resolution, in which the court found no anti-union conduct. The exclusion of a trade union section from participating, as a full member, in the equal opportunities committee negotiating the equality plan for the company as a whole was held not to constitute anti-union conduct. Since the appellant trade union had not participated in the negotiation of the collective bargaining agreement — negotiated between the company and the works committees — and had no right to do so, it could not claim an infringement of any collective bargaining right of its own arising from the non-participation of any of its members in the Equal Opportunities Committee. The Supreme Court dismissed the appeal of cassation brought against the ruling of the National Court, which had rejected the claim for collective dispute resolution and denied CGT the right to participate, as a full member, in the equal opportunities committee negotiating the equality plan for the company as a whole.
It is therefore essential to negotiate a company equality plan through the legitimate representatives of the workforce, whether that be the Works Council or the Staff Delegate.
To do so, it is necessary to hold an election of employee representatives at the workplace.
Consult any of our employment lawyers specialising in equality plans here:
We provide the following information to help you organise an election at your company:
Find out everything about Company Equality Plans here: how to draw up an equality plan for your company, covering salary records and equal pay, measures to achieve work-life balance, workplace harassment protocols, equality plan templates, and more.
