Anatomy of a labour retaliation after a successful equal pay claim

Comment to European Court of Humans Rights Judgment of 4 December 2025 (Ortega v. Spain)

Abstract

The seven parameters established by the European Court of Human Rights in its judgment of December 4, 2025 (Ortega v. Spain), prove highly instrumental in determining whether a disciplinary sanction imposed on a female employee —following a successful equal pay claim—constitutes unlawful retaliation or a justified disciplinary measure. These parameters include thebackground of the sanction, the persistence of unfavorable treatment towards the worker,the proportionality of the penalty, the intentionality and gravity of the misconduct prompting the sanction, the causality of the measure, and its final outcome.

The application of these judicial criteria ensures compliance with the duty of "due diligence" required under Article 14 of the European Convention on Human Rights to effectively protect the right to be free from victimization regarding gender-based pay discrimination. However, the judgment does not introduce elements that alter the current legal framework or recent judicial interpretation concerning the exclusion of individualized remuneration data from the pay register (Art. 28.2 of the Workers' Statute). This is a situation that must evolve following the mandatory transposition of Article 12.3 of Directive (EU) 2023/970 on pay transparency.