Legal summary
December 2025
Ortega Ortega v. Spain - 36325/22
Judgment 4.12.2025 [Section V]
Article 14
Discrimination
Domestic courts’ upholding of applicant’s dismissal allegedly in retaliation for a successful claim of discrimination based on sex in relation to her remuneration: violation
Facts – Between 1994 and 2017 the applicant worked for a company that provided administrative services to a bank and to other companies belonging to the bank’s group. The applicant was the head of the finance department, overseeing the staff payrolls.
On 6 April 2017 the applicant brought a conciliation claim against her employer alleging she had been discriminated against on grounds of sex, as she was receiving a lower remuneration than her colleagues in the same position, all of whom were men. In the absence of a settlement she lodged judicial proceedings in which an employment tribunal upheld her claim, declaring the existence of sex-based discrimination in relation to her remuneration and ordering the company to adjust her salary and pay compensation. The company’s appeals against the decision were unsuccessful.
In parallel, on 2 May 2017 the applicant was dismissed from her job for breaching her duty of confidentiality and the company instructions regarding the protection of personal data on account of her disclosure in the anti-discrimination proceedings of a detailed account of the remuneration of her colleagues that she had shared by email with third parties. The applicant lodged a conciliation and judicial claim in relation to her dismissal, arguing the measure had been in retaliation for her claim concerning discriminatory remuneration. The employment tribunal dismissed her claim and upheld the company’s decision to dismiss her. All her subsequent appeals were unsuccessful.
Law – Article 14 taken in conjunction with Article 8:
(1) Applicability – The applicant had worked for the same company for more than 20 years and had been unemployed for almost five years following her dismissal. Therefore, the confirmation of her dismissal by the domestic courts had had clearly negative financial consequences. Moreover, the fact that her dismissal had been a disciplinary one, based on very serious misconduct, and that such considerations had been upheld by the domestic courts directly concerned her personal integrity and professional competence and suggested that her professional reputation had been affected. Such a combination of circumstances also had had adverse effects on her self-perception and self‑respect. Thus, the facts of the case fell within the ambit of Article 8. The question whether Article 14 in conjunction with Article 8 gave rise to a positive obligation to protect against alleged retaliation following a successful claim of discrimination based on sex fell to be dealt with on the merits.
(2) Merits –
(a) The positive obligation in issue – The applicant’s dismissal had not been imposed by a State authority, but by a private company. It was not disputed that in the discrimination proceedings which had preceded the impugned dismissal the domestic courts had acted in accordance with the State’s positive obligations regarding protection against sexual discrimination. Addressing whether the respondent State’s positive obligations extended to providing protection against allegedly retaliatory measures in the form of dismissal from work following a discrimination claim based on sex the Court reiterated that the advancement of gender equality was a major goal in the member States of the Council of Europe. It further observed that the right to equal remuneration was recognised by several international treaties some of which had been in force for several decades, including in respect of Spain. In some of those instruments, namely the European Social Charter and EU directives, the right to be protected against measures taken by the employer, particularly dismissal, in reaction to complaints aimed at enforcing compliance with the principle of equal treatment were considered an important aspect of the right to equal remuneration. The Court had stated previously that it was crucially important that individuals affected by discriminatory treatment should be provided with an opportunity to challenge it and should have the right to take legal action to obtain damages and other relief. Such right to take legal action would be severely impaired if it was not accompanied by real and effective protection in case of retaliation for that action. In that regard the Convention was intended to protect effective rights, not illusory ones.
In view of the foregoing, the States’ positive obligations under Article 14 in conjunction with Article 8 required them to ensure real and effective protection against any form of reprisal by employers in connection with complaints brought to ensure respect of the right not to be discriminated against on grounds of sex. Therefore, where the domestic courts were called to rule on measures allegedly taken by an employer in retaliation against the exercise of the right not to be discriminated against on grounds of sex, they were bound to secure to those concerned the enjoyment of the rights enshrined in Article 14 in conjunction with Article 8. They had to have due regard to the allegedly retaliatory nature of the impugned measure and the context and carefully balance the relevant interests at stake, providing relevant and sufficient reasons to justify their decisions.
(b) Compliance with the positive obligation in issue – The domestic law provided for equal treatment of men and women in matters of employment and remuneration, as well as for protection against reprisals in that connection. Moreover, Article 24 of the Constitution guaranteed access to courts and protection from retaliation for victims of discrimination. The Court did not discern any deficiencies in the regulatory framework applicable in the respondent State that might entail a violation of its positive obligations. In that regard the European Committee of Social Rights had also found that the situation in Spain concerning the obligation to guarantee the right to equal pay was in conformity with the European Social Charter and the Protocols thereto.
Assessing the application of domestic law by the employment tribunal the Court firstly noted that the tribunal had dismissed the applicant’s argument of a violation of her right to be protected against retaliation on the basis that previous complaints raised with the company concerning her discriminatory treatment had not led to any retaliatory reaction. Furthermore, the High Court had stated that the existence of a breach of the applicant’s right to be protected against retaliation had been ruled out “more than by the reiteration of verbal claims throughout her period of employment, by the veracity of the facts attributed in the dismissal letter”. The domestic courts’ reasoning had failed to have regard to the fact that the absence of retaliatory measures had lasted as long as the applicant only had raised the discrimination issue internally. The company’s reaction had changed following the applicant’s first external claim in April 2017. In addition, in that claim the applicant had raised for the first time the issue of the salary gap as one which affected her fundamental right not to be discriminated against on grounds of sex, thus requiring the company to objectively justify that gap. The domestic courts had failed to have sufficient regard to the relevant context by omitting to note the difference between the applicant’s claim of 6 April 2017 and her previous internal contact with the company’s management and the fact that the allegedly retaliatory measure had followed swiftly after her April 2017 claim. Furthermore, the Court failed to see how the absence of a reaction from an employer faced with repeated internal complaints by an employee could be seen as a fact ruling out any retaliatory intent on its part when the conflict had escalated to the stage of administrative or judicial proceedings.
Secondly, the domestic courts had considered that the applicant’s dismissal had been based on very serious misconduct, holding that even accepting that she might have used the relevant private data to substantiate her claim, she would not have been entitled to share that data with persons external to the company who had had no prior knowledge of that information. Furthermore, she had had a duty of secrecy in respect of the data she had managed as head of the finance department and she had not obtained the consent of the concerned persons in breach of the Labour Regulations and the Institutional Law on Data Protection. The domestic courts had been faced with the conflicting interests, on the one hand, of the applicant’s right not to be discriminated against in the employment context and her right to bring the necessary actions in defence of that right, without being exposed to reprisals, and on the other, her colleagues’ right to the protection of their personal data and the company’s duty to protect that data. The company had had a duty to protect its employees’ right to privacy and had been entitled to take measures to ensure the fulfilment by its employees of their professional duties in that regard. The Court therefore accepted that a disclosure of private information in the context of work might call for disciplinary measures or sanctions against an employee. However, the domestic courts had been required to strike a balance between the various interests involved and to assess whether the dismissal had been justified in the specific case-circumstances, having regard, in particular, to the relevant context and the imperative to secure effective protection against discrimination.
In that regard, while the domestic courts had not challenged the applicant’s position regarding the reasons for her disclosing the payroll information, they appeared not to have sufficiently taken into account the fact that there had been a situation of longstanding conflict between her and the company in respect of sexual discrimination, that she had suffered discriminatory treatment for several years and that she had complained to the company’s management repeatedly to no avail. Without putting into question the domestic courts’ finding that the disclosure of the payroll data had been in breach of the applicant’s duties as an employee, the above-mentioned elements had been highly relevant to the assessment of the context and gravity of that breach and, therefore, to the justification for the very severe disciplinary measure imposed. An assessment of the facts above had been undoubtedly relevant to the question whether retaliatory intent had motivated, at least partly, the dismissal. In particular, it had not been disputed that the applicant had collected the remuneration data and included it in her claim with the sole purpose of substantiating it. The use of such data as evidence in the discrimination proceedings had not been challenged by the company and had constituted the basis for the finding of a violation of the applicant’s rights. While it had been undoubtedly relevant to note that the applicant could have requested such information through the domestic courts and that she had not been entitled to share it with third parties outside of the company, in performing the relevant assessment of the justification for the dismissal, the domestic courts should have also considered the other related elements noted above. Furthermore, the domestic courts had not taken into account that the relevant email had been part of an email chain strictly related to the applicant’s discrimination claim and that the message had been addressed to a limited number of persons who had been directly or indirectly involved in the conflict, without the existence of any intention to publicly disseminate the information – which was of relevance for assessing the proportionality of her dismissal. The courts’ decisions had also not contained any assessment of the impact of the disclosure of personal data on the persons concerned, taking into account the nature of the data and the apparent absence of any complaints lodged by the persons affected.
In sum, the domestic courts had upheld the applicant’s dismissal by applying a defective approach, not compatible with the positive obligations regarding protection against discrimination. The dismissal had had the effect of negating the protection against discrimination afforded in the separate anti-discrimination proceedings and the domestic courts had not engaged with that consequence. Furthermore, they had failed to give sufficient weight to relevant elements such as the context of persistent sexual discrimination to which the applicant had been subjected, the repeated failure by the company to react to the applicant’s attempts to end it via internal means, the purpose of the disclosure of private information, the limited impact of such disclosure, and the severity of the measure taken against the applicant, which could have been indicative of a retaliatory motive. Thus, the reasons given by the domestic courts to uphold the applicant’s dismissal had not been sufficient in the case-circumstances. While the Court could not speculate on whether a careful consideration of the factors above should have resulted in the annulment of the dismissal, the foregoing considerations were sufficient to enable it to conclude that the respondent State had failed to fulfil its positive obligations to ensure effective protection against discrimination on the grounds of sex in the context of employment and equal remuneration.
Conclusion: violation (unanimously).
Article 41: EUR 12,000 in respect of non-pecuniary damage; claim for pecuniary damage dismissed.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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