New regulations aim to improve gender equality

Introduction
New equality measures

Introduction

On 8 March 2019 the Royal Decree-Law on Urgent Measures to Guarantee Equal Treatment and Opportunities for Women and Men in Employment and Occupation (6/2019) came into force.

Among other things, the decree-law has amended the Workers Statute and Organic Law 3/2007 (the Equality Law) in order to improve gender equality.

New equality measures

The decree-law, which applies to companies established in Spain, aims to:

• improve gender equality between women and men;
• reinforce equal pay; and
• enable parents to share childcare responsibilities.

Equal remuneration
As a consequence of the European Commission Recommendation of 7 March 2014, the concept of 'work of equal value' has been introduced to prevent salary discrimination and reinforce the principle of equal remuneration. This new concept implies that roles will have equal value where the following features are equivalent:

• the nature of the functions or tasks carried out;
• the educational, professional or training conditions required to perform the role;
• the factors which relate strictly to the role's performance; and
• the labour conditions under which the role is performed.

To reinforce equality in remuneration and prevent gender-based discrimination, companies must now keep a record of the average value of wages and any other kind of remuneration that they provide to employees. This data must be separated by gender and categorised into:

• professional groups;
• professional categories; or
• equal working positions.

This record should be accessible to employee representatives or the relevant works council. Companies with more than 50 employees must also justify the reasons for a salary gap when the average salary for employees of one gender is at least 25% higher than that of the opposite gender.

In addition, if a contract is declared null and void due to salary discrimination based on gender, the employee will be entitled to the remuneration corresponding to the work of equal value.

Equality plans
Before Royal Decree-Law 6/2019 came into effect, only companies with more than 250 employees had to implement an equality scheme or plan. This obligation has now been extended to companies with 50 or more employees. The following deadlines apply for completing an equality plan:

• companies with 50 to 100 employees – three years;
• companies with 101 to 150 employees – two years; and
• companies with 151 to 250 employees – one year.

To prepare their equality plan, companies must carry out discussions (where appropriate) with employee representatives, which must cover:

• the recruitment process;
• professional classification;
• education;
• professional promotion;
• working conditions, including the monitoring of male and female salaries;
• the exercise of personal, family and work-life balance rights;
• female under-representation;
• remuneration; and
• sexual harassment prevention.

Once companies have finalised their equality plan, they must register it with the newly created Public Registry for Equality Plans of Companies.

Extension of paternity leave
One of the main amendments introduced by Royal Decree-Law 6/2019 is the extension of paternity leave in a bid to progressively align conditions for all parents. Now, a parent other than a child's biological mother will be entitled to enjoy paid leave, which will be extended from five to 16 weeks as follows:

• As of 1 April 2019, paternity leave will be extended to eight weeks. The first two weeks must be taken immediately after the child's birth; the remaining six weeks can be taken at any time during the 12 months following the birth.
• In 2020 paternity leave will be extended to 12 weeks. The first four weeks must be taken immediately after the child's birth; the remaining eight weeks can be taken at any time during the 12 months following the birth.
• In 2021 paternity and maternity leave will be made equal, with both set at 16 weeks. Both parents must take the first six weeks immediately after the child's birth; the remaining 10 weeks can be taken at any time during the 12 months following the birth.

Other amendments

Probationary period
Where an employer terminates the contract of a pregnant employee during their probationary period, such termination will be deemed null and void from the start date of the pregnancy until the date on which the suspension of the contract for maternity leave commences, unless the company can provide evidence of non-discriminatory termination grounds.

Working day
Employees can request that the duration and distribution of their working time be adjusted in order to recognise their right to work-life balance, without having to request a reduction of their working hours in accordance with Article 37 of the Workers Statute. However, such adjustments must be reasonable and proportionate to the needs of the employee and the organisation (including the production needs of the latter).

For employees with children, the right to make such a request is guaranteed until their youngest child turns 12 years old.

Null and void dismissals
Dismissals of both male and female employees will be declared null and void where they have been reinstated after a period of leave due to childbirth, adoption or custody and the dismissal occurs within 12 months (previously nine months) from the date of childbirth, adoption or custody.

Leave of absence for childcare
The job reserve period has been extended to 15 months for employees who:

• request the suspension of their contract for childcare purposes in accordance with Article 46 of the Workers Statute; and
• qualify for large family status.

This period has been extended to 18 months for employees who qualify for special category large family status.

For further information on this topic please contact César Navarro or María José Ramos at CMS Albiñana & Suarez de Lezo by telephone (+34 91 451 9300) or email (cesar.navarro@cms-asl.com or mariajose.ramos@cms-asl.com). The CMS Albiñana & Suarez de Lezo website can be accessed at www.cms.law