Moving towards equal pay for men and women at work

Facts
Decision
Comment

A recent judgment of the Andalusia High Court is the first decision in Spain to expressly declare that women and men are entitled to receive the same salary when performing similar functions and responsibilities, unless the company provides objective grounds, unrelated to gender, to justify the salary inequalities.

Facts

A female worker provided services for the company as head of the finance department from December 1994 to May 5 2017 when she was fired. The company, which undertook administrative services for a bank entity, had an organisational chart in which there were four departments: three of the departments were headed by men and the other department was headed by the woman.

Remuneration of all four department heads consisted of a salary set by the applicable collective bargaining agreement for each professional category, as well as salary incentives which were unilateral and discretionarily fixed by the managing director for each department head.

In this respect, between 2014 and 2016, the amount paid to the female worker as a salary incentive was lower than that paid to the rest of the male department heads. Differences in payment over the two-year period exceeded €2,000.

In view of this, the female worker emailed the managing director on January 28 2016 asking for the reasons why her remuneration in the form of salary incentives was significantly lower than the rest of the department heads. The managing director did not reply to the email.

Further, in March 2017 the female worker was on sick leave and, in accordance with such temporary incapacity, requested sick pay of up to 100% of her regular salary. The company refused this request. However, it was proved that the company had paid up to 100% of the regular salary to the other department heads (the men) in equivalent situations.

As a result, the female worker filed a claim before the Malaga Social Court asking for:

• declaration of the infringement of the principle of non-discrimination on grounds of gender, according to Article 14 of the Constitution;
• entitlement to the same conditions of salary as the other department heads; and
• additional compensation due to the discrimination suffered by her as a woman.

The company justified the woman's lower salary by arguing that:

• her function and responsibilities were not as important or as relevant as those of other department heads; and
• there were women in the company who earned a higher salary than men who performed the same functions and responsibilities.

Decision

On February 14 2018 the Andalusia High Court of Justice analysed whether the lower salary paid by the company to the female worker, who had been performing the same duties and responsibilities as male heads of department, was discriminatory in accordance with the principle of equal treatment between men and women (Article 14).

Confirming the Malaga Social Court judgment, the Andalusia High Court decision ruled as follows:

• The court stated that the female worker's dismissal did not prevent her from filing a claim against the company based on a breach of a worker's fundamental rights (in this case, non-gender discrimination at work).
• In accordance with the documentation submitted by both parties, the court considered that it was clear that the female worker received lower remuneration than the other department heads and that this indicated potential gender discrimination against the woman.
• The court established that the company was obliged to provide reasonable and objective justification to prove that the female worker's significantly lower salary was not based on gender discrimination.
• The court ruled that the company had not proved in what measure the finance department had less importance or responsibility than the other departments whose heads were men. Consequently, with the company having misrepresented the existence of gender discrimination against the female worker, the court held that she was entitled to receive the same remuneration as the other department heads and additional compensation for the harm suffered.

Comment

This is the first decision in Spain to expressly declare that women and men are entitled to receive the same salary for performing similar functions and responsibilities. Nevertheless, the decision is non-binding for other Spanish high courts and it is therefore necessary to wait for further new decisions on the subject.

As a result of this decision, it is advisable for companies to review their salary policies in order to identify employee remunerations that could be considered discriminatory based on the principle of equal treatment between men and women at work.

For further information on this topic please contact César Navarro or Francisco Artacho Sánchez at CMS Albiñana & Suarez de Lezo by telephone (+34 91 451 9300) or email (cesar.navarro@cms-asl.comor francisco.artacho@cms-asl.com). The CMS Albiñana & Suarez de Lezo website can be accessed at www.cms-asl.com.