What do I need to know about the new legislation on equality?

What is the number of employees above which employers have to have an equality plan?

Currently, every employer that has 100 or more workers. In March 2022, those that have 50 or more workers. There is also an obligation for employers with fewer workers if their applicable collective labor agreement requires them to have an equality plan or if the labor authority so decides in a penalty proceeding, in lieu of the ancillary penalties.

What is the maximum term for an equality plan?

The maximum term is 4 years.

Can an employer stop applying the equality plan if the number of workers falls below the threshold at which an equality plan is required?

No. The employer must continue to apply the equality plan until the end of the valid term of the agreed plan.

When do union representatives have to be involved in negotiating equality plans?

If there are no workers’ statutory representative at the employer, or at any of the employer’s workplaces, and also if the equality plan is for a group.

Have the rights to information of the negotiating committee for the equality plan been increased?

Yes they have. The negotiating committee may access all documents and information that will be needed to prepare the equality diagnosis, and the employer has to provide access to them. In return, the negotiating committee has a “duty of secrecy” and cannot use those documents for any other purpose than to negotiate the equality plan.

An obligation has been imposed to register all equality plans. Can an equality plan be registered if it has not been negotiated, or if it has been negotiated but an agreement could not be achieved for its approval by the negotiating committee?

All equality plans must be registered within fifteen days following their approval, and only equality plans that have been negotiated may be registered, no matter whether the negotiation ended with an agreement or not.

Is there going to be a verification of lawfulness before its publication on the register in the same way as for collective labor agreements?

Yes, that’s right. If the plan does not meet the legal requirements, the authorities will make a request to the company to correct the identified defect, within a specified period. It is therefore important to check whether the plan is lawful before it is filed for registration.

Are groups of companies always able to draw up a single plan?

Employers belonging to a group of companies can prepare a single plan for all or some of the companies in the group (by having a diagnosis made for every employer), but they will need the negotiating committee’s approval to do so, and the committee must substantiate the arguments for having a single equality plan.

What do employers that currently have an equality plan in force need to do to fulfill their obligations under Royal Decree 901/2020?

Carry out an adaptation process in the period laid down for reviewing plans, and in all cases, before January 14, 2022, following a negotiating process.

Royal Decree 902/2020 imposes an obligation to have a pay register. Is this obligation identical for all employers, whatever their size?

All employers have had to have a pay register since March 2019, but from April 14, 2021 a greater amount of information will have to appear on that register for employers under obligation to have an equality plan. These employers, besides providing pay information distributed by professional groups or categories, also have to show that information broken down for groups of jobs that are of equal value at the company, according to the results of the valuation of jobs. They also have to include a reason where the arithmetic mean or median of the aggregate pay amounts at the company for workers belonging to one gender is at least 25% higher than for the other gender.

What contents should a pay audit have?

In a pay audit every job at the company must be evaluated, to be able to allocate a score or numerical value to each. It must also contain a plan of action for correcting pay inequalities and a follow-up system.

How can Garrigues assist its clients in the process of preparing and negotiating the equality plan?

At the Labor and Employment Department of Garrigues we prepare, based on all the quantitative and qualitative information we request from the employer, an equality diagnosis that will serve as a working document for the negotiating committee to prepare their report with the conclusions of the diagnosis, a document that will be part of the equality plan. We also take care of ensuring that the negotiating committee is set up correctly, either with the workers' statutory representatives or with union representatives, or both, as required.

We advise our clients during negotiation of the diagnosis and of the equality plan, either by sitting on the negotiating panel, or not sitting on the panel but providing technical and legal support to the employer’s representatives during the negotiation.

We draft the equality plan produced by the negotiations, taking care to ensure that all the legal requirements are satisfied to prevent issues arising for its subsequent registration. And lastly, we carry out the register’s procedures for the equality plan until it has been entered.

At Garrigues we also have specialized professional practitioners who can advise on pay audits and on pay gap analyses.

What are the risks for employers if they fail to fulfill their obligation to have a registered equality plan?

Besides possibly having a penalty imposed by the labor inspectors, they could be excluded from public tenders by being legally barred from entering into contracts with the public sector.

Why Garrigues for equality matters?

The recent legislation has greatly added to the difficulty of fulfilling equality obligations. Employers need to be aware that complications can arise in the negotiation of an equality plan, the negotiators may take issues to court concerning bad faith or defects in the negotiation or even to apply for the equality plan to be voided if an agreement could not be achieved in the negotiation.

The impact that the measures in the equality plan will have is also a key factor to consider, as well as the difficulty for implementing it, bearing in mind that failure to fulfill any of the measures may give rise to legal action by the workers or by their statutory or union representatives.