The Madrid justice ratifies the sentence of a construction company for paying an engineer less salary than her male partner

The Madrid justice system has confirmed a resolution dated March 31 of Madrid Social Court number 22 that sentenced a construction company for discriminating against an employee, a civil engineer, in front of her roommate by paying her less for the same job during years. The company appealed the ruling that forced it to equalize the salary of both workers and compensate the plaintiff with 13,000 euros for moral damages. Now, the Superior Court of Justice (TSJ) of Madrid has rejected the company’s arguments, which insisted that the worker had more work experience and performed more qualified tasks.

The legal defense of the worker, with a higher degree and more years of seniority in the company than her partner, has managed to get the court to confirm that there was discrimination based on gender in a sector that has historically been masculinized. The wage gap arose when, in 2015, she requested a reduction in working hours for the legal guardian of a minor child and they hired a new partner. From that moment on, her salary was frozen and she no longer received the usual annual bonuses while her colleague’s monthly payments increased.

The decision of the Madrid Supreme Court (whose text can be read here), dated November 16, rejects the request of the construction company, which sought to annul the decision of the court for suffering from “internal inconsistency”. According to the company’s lawyers, the judge did not take into account that there was a reason to pay the worker more than his partner, since he had a longer career in the sector and assumed “additional functions” in the department. . However, the magistrates do not consider this justification sufficient. In the first place, because, as they point out, the greater background or professional career is not related to the discussion about possible discriminatory treatment, and, secondly, because the company did not specify what percentage of the day the worker dedicated to these differential tasks. to be able to compare your situation with the plaintiff.

In short, sums up the worker’s lawyer, Fe Quiñones, a lawyer at Javaloyes Legal, “the company has not proven an objective and reasonable justification for the worker’s salary difference with her co-worker.” The judgment of the TSJ, values ​​the lawyer, “gives the reason to the plaintiff in everything again and confirms the judgment of instance in all its terms, being already in itself a very important sentence that creates jurisprudence.” And it is that the resolution of the court was the first sentence that was issued after the entry into force, in April 2021, of the obligation to keep a salary record in companies to fight these inequalities. The claim was based precisely on the information included in this record.

same job

The plaintiff had been working for twelve years as a survey technician at the construction company when she requested a reduction in hours to care for her first child. Until then, he had received an annual bonus for his results, but since that year, he has stopped earning that money. At the same time, the company hired a colleague, a technical architect, with a significantly higher starting salary. While the worker did not get any raise again, the company did increase the salary of the new employee.

The worker formally required her employer to inform her of the percentage difference between wages thanks to the aforementioned rule on mandatory registration and came to the conclusion that she was being discriminated against.

The Labor Inspectorate issued a report stating that both workers carried out common tasks in the department and carried out the same works, in terms of number and economic amount. The only difference, underlined by the company in its appeal, is that the technical architect was entrusted with three international offers, although, the magistrates state, it was not specified what this work entailed in relation to the total number of issues that were developed in the department .

discriminatory treatment

The resolution of the Madrid court focuses on clearing up the doubts raised by the construction company about whether or not there was discriminatory treatment to the detriment of the engineer. And it is that companies are free to set the salary of their workers, as long as they respect the legal or conventional minimums, but, what they cannot do, the magistrates emphasize, is pay less for the same work compared to others for some reason. reason “that has a discriminatory meaning for influencing any of the causes prohibited by the Constitution or by the Workers’ Statute.”

As the lawyer Fe Quiñones explains, “the TSJ considers that the principle of autonomy of the will leaves a margin in which the private agreement or the unilateral decision of the businessman in the exercise of his powers of organization of the company, can freely establish the worker remuneration, but always respecting the legal or conventional minimums, and except when the difference in treatment in terms of salary has a discriminatory meaning; This is very important”.

In this case, the court argues, there was an indication of discriminatory treatment that the company did not dismantle. And it is that the plaintiff showed that she earned much less than her partner doing the same. His salary has stagnated since he asked for a reduction in hours to take care of his youngest child in 2015.

“Even though the defendant affirms that there is no link between the reduction in working hours due to legal guardianship and the fact that she stopped receiving the extraordinary bonus, the temporal coincidence constitutes a clear indication in relation to the possible connection between the end of the payment of the supplement extraordinary and the reduction of working hours”, express the magistrates.

The construction company alleged that the employee had more extensive work experience and that he was entrusted with additional functions, which he specified in the preparation of three international offers. However, the Labor Inspection report favored the plaintiff by indicating that both workers belonged to the same department and carried out the same works by volume and amount. In relation to differential work, the court regrets that “no test has been carried out to prove the percentage of the day devoted to said tasks or functions, or what percentage it represents of the total work in order to be able to establish a comparison parameter adequate with the work carried out by the plaintiff, pondering to the effect that she has also been in reduced working hours due to legal guardianship since 2015.”

The different professional trajectories of both workers, the court emphasizes, cannot “have the intended relevance for the purposes at hand, especially if one takes into account that we are dealing with a worker with a twelve-year professional career in the company and who does not It is clear that to date his professional training in the functions entrusted to him since 2009 has been questioned.”

In conclusion, “given this indication of pay discrimination and the company not having proven an objective and reasonable justification” the court rejects the construction company’s appeal and confirms the court’s resolution in all its aspects. The sentence can be appealed before the Supreme Court.

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