In the area of equal pay and salary transparency, the Supreme Court (SC) has clarified a crucial aspect in its recent ruling of November 21, 2024. These ruling addresses whether the pay register must include the individualized data of employees when, in certain categories or positions, an employee's salary can be identified.
For the SC, companies are not obliged to include individualized salary data in the remuneration register.
The SC ruling establishes a key precedent in delimiting the scope of the salary register in companies. This ruling specifically addresses whether it is mandatory to include data that allows identifying the individualized remuneration of a worker, concluding that it is not necessary and that doing so could violate fundamental rights such as the protection of personal data. Below, we analyze in depth the most relevant aspects of this ruling.
1. The Salary Register
Spanish legislation (Article 28 of the Workers’ Statute and RD 902/2020) requires companies to keep an annual salary register that guarantees salary transparency and equality between women and men. This register must include:
- Average values of salaries.
- Arithmetic averages and medians of salary and non-wage compensation.
- Data disaggregated by sex and distributed by professional groups, professional categories or positions of equal value.
The main purpose is to identify and correct possible gender-based pay inequalities, without the need to include individualized data.
2. Protection of personal data
The Supreme Court reinforces the importance of the right to data protection (Article 18.4 of the Spanish Constitution) and its interaction with the General Data Protection Regulation (GDPR). It highlights the following principles:
- Data minimization: Only data strictly necessary to fulfill the purpose of the salary record should be processed.
- Purpose limitation: The data collected may not be used for purposes other than ensuring equal pay.
- Confidentiality: Direct or indirect disclosure of information that makes it possible to identify a worker’s pay is prohibited without a clear legal basis and specific security measures.
3. Exclusion of individualized data
The judgment emphasizes that, although the remuneration register must include the entire workforce, the legislator has established that the values should be average and not individualized. In particular:
- Small groups: if there are few employees in a professional category (e.g. one or two), the averaged data could indirectly identify individual remuneration. In such cases, the Court notes that it is justifiable not to include such data in the register.
- Right to privacy: The inclusion of individualized salaries would violate the fundamental right of workers to the protection of their personal data, especially when there is no legal basis to support it.
4. Implications for companies
The ruling has practical implications for all companies obliged to keep wage records:
- Pay record management: records should focus exclusively on averages and medians disaggregated by sex, avoiding any data that would allow individual salaries to be identified.
- Avoiding legal conflicts: Companies that include individualized data without a legal basis expose themselves to sanctions and claims for violation of data protection regulations.
- Equality plans and salary audits: Although these tools complement pay transparency, they should be designed in a way that respects the confidentiality of individual information.
5. European context
The judgment also refers to the European Directive 2023/970 on pay transparency, which Member States must implement by June 2026. This directive reinforces the principle of equal pay and establishes additional obligations for employers, such as:
- Provide information on average pay levels disaggregated by sex.
- Ensuring that the information provided complies with the GDPR and avoids identifying female employees.
The Supreme Court suggests that this transposition could be an opportunity to clarify Spanish regulations and establish additional guarantees to reconcile pay transparency and data protection.
For further information, please contact Labor consulting
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