The Judgment of Spanish National High Court 23/2023, of February 23, only recognizes an exception to the obligation of companies to exclude individualized remuneration data from their salary register

Abstract

The general criterion applied by companies when the preparation of their salary register involves the transmission of an individualized salary amount has been to omit such personal data from the document to which the legal representation of the workers has access. The adoption of this criterion has had strong support in the Judgment of the Superior Court of Justice of Catalonia 2745/2020, of June 22, and in the guide La protección de datos en las relaciones laborales of the Agencia Española de Protección de Datos, published in 2021. Also a literal, logical and teleological interpretation of article 28.2 of the Estatuto de los Trabajadores (ET) and Royal Decree 902/2020 have defended this way of presenting the salary register. Judgment of Spanish National High Court 23/2023, of February 23, modifies this scenario after declaring that the business practice consisting of mutilating remuneration data in certain jobs held by a single person, or by a female worker and a male worker, violates current legislation, because the transmission of personal data is justified by a legal obligation (arts. 28 ET and 8 LO 3/2018), the recipient of the information has a legitimate purpose (arts. 6.1 Regulation (EU) 2016/679 and 4 to 7 RD 902 /2020) and, in addition, is subject to the duty of secrecy (art. 65 ET). A careful reading of the sentence allows us to conclude that it does not recognize a new general obligation for companies to transmit individualized data in the remuneration register to the representative bodies of the workers, but only admits an exception to the general rule of not transmitting in the salary register individualized salary amounts when i) they must be known by the negotiating committee of the equality plan in the diagnosis phase, ii) to the extent that the committee or any of its components require it to carry out the remuneration audit and iii) as long as the individualized remuneration data requested is functional to assess equal pay for work of equal value.