Published on 28 August 2023

FIFTH SECTION

Application no. 36325/22 Maria de la Peña ORTEGA ORTEGA against Spain lodged on 12 July 2022 communicated on 13 July 2023

SUBJECT MATTER OF THE CASE

The application concerns the dismissal of the applicant and the related judicial proceedings.

On 6 April 2017 the applicant lodged a claim before Malaga Employment Tribunal No. 2 against her employer, a private company, alleging wage discrimination on grounds of sex and submitted as evidence documents showing that the wages of her male colleagues performing the same job functions were higher than hers.

On 2 May 2017 the employer company dismissed the applicant for having breached the duty of confidentiality and the company’s personal data protection policy by submitting the documents concerning her male colleagues’ wages to an employment tribunal and to third persons thus sharing the personal data.

The applicant challenged her dismissal before Malaga Employment Tribunal No. 4 alleging that it had been a retaliation for her wage discrimination complaint.

On 10 August 2017 Malaga Employment Tribunal No. 2 found it established that the wage discrepancy had been in breach of the applicant’s right not to be discriminated against on grounds of sex and ordered the company to adjust the applicant’s salary from January 2017 and to pay a compensation of pecuniary and non-pecuniary damage. According to the information in the file, on 15 March 2019 the compensation was paid.

On 14 February 2018 the Andalusia High Court of Justice dismissed the company’s appeal and confirmed the first-instance judgment. On 9 January 2019 the Supreme Court of Spain declared inadmissible the company’s cassation appeal and declared final the judgment of the Andalusia High Court of Justice.

On 8 July 2019 Malaga Employment Tribunal No. 4 dismissed the applicant’s complaint concerning her dismissal, which it declared lawful. It stated that there was no causal link between her discrimination complaint and the dismissal since she had complained about that subject before the company in different previous occasions. It held that by submitting data on her colleagues’ salary in the discrimination proceeding and by sending it to third persons, the applicant has committed a serious misconduct. The fact that the information was used for a legitimate aim did not exonerate the applicant from her obligations since she could have made use of the available procedural mechanisms for requesting the relevant data. Furthermore, sharing the data with third persons, without the company’s authorisation and without the consent of the persons affected had been a serious misconduct.

On 13 May 2020 the Andalusia High Court of Justice, sitting as a chamber composed of the same judges who delivered the judgment of 14 February 2018, dismissed the applicant’s appeal against the judgment of 8 July 2019. It stated that even accepting that the applicant was entitled to use information on her colleagues’ salaries to sustain her wage discrimination complaint, she was not entitled to share it with third persons who had not had previous knowledge thereof. Consequently, the dismissal had not been a retaliation against her, but had been based on the reasons alleged by the company.

The Supreme Court declared the cassation appeal inadmissible, finding no contradiction between the judgments submitted for comparison. The Constitutional Court declared the amparo appeal inadmissible stating that the applicant had not duly justified its constitutional relevance.

The applicant alleges a violation of her right to a fair trial under Article 6 § 1 and her right not to be discriminated against under Article 14. In particular, she states that the dismissal was an act of retaliation for her wage discrimination claim, that the company did not allege in the proceedings before Malaga Employment Tribunal No. 2 that the documents concerning her colleagues’ wages had been unlawfully shared with a court or with third persons, and that the domestic courts failed to strike a fair balance between her right not to be discriminated against on grounds of sex and the right to private life of her colleagues. She further alleges that the domestic courts, by upholding her dismissal, hindered the restitution of her right not to be discriminated against on grounds of sex as declared in the first set of proceedings.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair trial in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention, in relation to the court proceedings challenging her dismissal?

2. Has the applicant raised in substance a complaint under Article 8 of the Convention? If so, is Article 8 applicable in the present case? Has there been a violation of Article 8 of the Convention on account of the domestic courts’ judgments upholding the applicant’s dismissal? In particular, were the reasons adduced by Malaga Employment Tribunal No. 4 and the Andalusia High Court of Justice to justify their respective judgments “sufficient” for the purposes of Article 8 § 2? Did their decision-making process, seen as a whole, provide the applicant with the requisite protection of her interests?

3. Has the applicant been discriminated against on grounds of sex, contrary to Article 14 of the Convention, read in conjunction with Article 8, on account of her dismissal and the related judicial proceedings?

The parties are requested to submit a copy of the file of the criminal proceedings started against the applicant on charges of unlawful disclosure of secrets.