LABOR
Rafael Moreno de Guerra de Luis
We close 2024 with good news, resolving one of the issues that has caused significant headaches in recent years: the inclusion of salary data in pay registers that could reveal the individual remuneration of specific employees.
Workers’ legal representatives, as part of their right to access the contents of this register, have frequently demanded that it include the average salaries of all professional groups or categories, even for those in which there is only one male or one female employee. This requirement has caused significant concern within companies since providing this information would disclose the exact salary of certain workers.
The obligation for companies to create a pay register was introduced with the amendment of Article 28 of the Spanish Workers’ Statute by Royal Decree-Law 6/2019, dated March 1, concerning urgent measures to ensure equality between men and women in employment and occupation.
Under the Workers’ Statute, the pay register must reflect all salary information within the company, detailed and broken down. Since the objective is to determine whether pay inequality exists between men and women, the data must be disaggregated by gender. Furthermore, within this framework, comparisons must be made between professional groups, categories, or positions of equal value. The register must calculate arithmetic averages for these categories.
This system allows companies to identify the average salaries of men and women by group or category, making it possible to detect and correct any potential pay gaps. The pay register must be updated annually and include all remuneration received by employees from January 1 to December 31 of the preceding year.
Since the pay register became mandatory, questions arose about what data should be included. For groups or categories where there is only one male or one female, including their salary would reveal the exact earnings of that individual, as no average calculation would be possible. This issue has caused numerous conflicts between companies and workers’ representatives.
Finally, the Spanish Supreme Court addressed this issue in a recent ruling dated November 21, 2024 (No. 1302/2024), answering whether the pay register under Article 28.2 of the Workers’ Statute must include data that allows the identification of individual workers’ salaries.
The court clarified that the pay register required of employers should only include average values of employee remuneration. These averages must be disaggregated by gender and distributed by professional groups, categories, or positions of equal value.
The ruling emphasized that the regulation mandates the registration of average—not individual—remuneration values disaggregated by gender. It is evident that the purpose of the pay register is to serve as a tool for promoting pay equality.
The court stated that the register does not need to include the individualized salaries of all employees. Instead, its purpose is to reveal whether average remuneration values disaggregated by gender indicate any inequality. In essence, the key issue is the comparison between men’s and women’s salaries—not the individual remuneration of each worker.
Royal Decree 902/2020, dated October 13, on equal pay between men and women, further develops the concept of the pay register. It specifies that the register must include all staff members, including executives and senior management. However, according to the Supreme Court, this requirement does not provide sufficient legal basis to mandate the inclusion of individualized salary values in the register. This interpretation is especially clear given Article 28.2 of the Workers’ Statute, which explicitly states that the register must only include average values.
The court also noted that this limitation applies even to workers’ legal representatives, who are entitled to access the full contents of the pay register. Unless it can be demonstrated that knowing individualized salary data is necessary for achieving pay equality between men and women, the principle of data minimization recommends limiting such disclosures. The ruling suggests that reasons for disclosing individual salary data should be clearly alleged and justified, but only when strictly necessary.
This decision supports the exclusion of individualized salary data from pay registers, even in information shared with workers’ legal representatives. Unless a compelling case is made for its necessity, individual salary information should remain undisclosed.
It remains to be seen whether this exception could lead to future rulings requiring companies to provide individualized salary data. However, at this stage, such developments appear unlikely.
