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Global employment briefing: Spain, June 2018

  • Spain
  • Employment law

12-06-2018

An update on recent employment developments in Spain of interest to a global employer:

Significant new gender pay gap legislation proposed in Spain

Currently, under both the Spanish Constitution and the Law 3/2007, employers are obliged to provide equal pay, regardless of an employee’s gender. This obligation is based on the Equality Principle.

A proposal submitted to Parliament on February 22, 2018 has prompted debate over a new Gender Equality Retribution Law. The aim of the proposal is to introduce changes to the Workers’ Statute which, among other things, would require companies to publish their average salaries in order to reduce pay discrimination against women. This pay information would have to be delivered to the employee’s representatives. The proposal also aims to clarify payslip information so that employees can know the origin of their remuneration and compare their breakdowns.

A further potential result of the proposal, were it to be adopted, would be the creation of special labour inspection units concerning gender equality. Delegating investigation of alleged unequal treatment to specialist units in this way would allow gender inequality to be managed in a more efficient way.

These proposals are currently under review and are not finalised or certain so there is no date for implementation as yet.

The Spanish Supreme Court applies the “Barbulescu” Judicial Doctrine regarding employer control over emails

In the landmark European Human Rights Court decision of “Barbulescu”, judicial doctrine was established to the effect that monitoring of employee must satisfy three essential factors: suitability of method, necessity and proportionality.

The Spanish Supreme Court has recently applied this judicial doctrine and defined the limits upon an employer’s ability to interfere with employee privacy rights. In particular, whilst acknowledging that it is important for employers to have control over the effective running of their business, the court was also clear that fundamental rights must nonetheless be respected.

In principle, the use of email within the working environment is included in an employee’s fundamental right to privacy. However, if an employer makes a collective provision restricting employee use of work emails for professional working purposes only, subsequent control of email use will not breach the right to privacy on the basis that personal use is expressly prohibited and may justify sanction.

Although finding that employers are entitled to control the use of their IT equipment to ensure it is being used for the execution of professional duties, the court has confirmed this right is not without limits. For example, the degree and method of control deployed by the employer must be proportionate to ensure it is not overly restrictive of the employee’s fundamental rights. To assess impact, employers must first establish that they have a legitimate objective; secondly, that their means of achieving that objective is appropriate (weighing up the extent to which the protection of the right and the legitimate objective conflict) and, thirdly, that their intrusions are necessary (in the sense that the legitimate objective could not reasonably be achieved by other, less intrusive means).

In the particular case, the Supreme Court found that examination of an employee’s computer was performed in accordance with these three criteria and was therefore not in breach of the employee’s fundamental rights.

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