From Defendant Accused of Disclosing Personal Data to Victim of Retaliation: The Shifting Legal Status of a Nonconformist Worker.
Ms Ortega worked for more than twenty years, from 1994 to 2017, for a company providing administrative services to entities within the financial sector.
On numerous occasions, both verbally and by email, she raised internal complaints alleging that she was being subjected to sex-based discrimination. In particular, she contended that her male counterparts of equivalent rank, while she held the position of Chief Financial Officer, received significantly higher remuneration.
After her complaints had repeatedly gone unaddressed, on 6 April 2017 she filed a conciliation claim before the competent mediation body.
Less than one month later, on 2 May 2017, the company proceeded to dismiss her for gross misconduct. According to the employer, Ms Ortega had committed a very serious disciplinary offence by including in her conciliation claim personal data relating to several colleagues in order to substantiate the alleged gender pay discrimination.
The information had been extracted from a document that the company had registered with the Spanish Data Protection Agency under a medium-level security classification and to which Ms Ortega had access by virtue of her professional responsibilities. Furthermore, she had received data protection training, had signed confidentiality undertakings, and was fully aware that the document was subject to restricted access and confidentiality obligations.
Meanwhile, in August 2017, the competent Labour Court in Málaga upheld the action for violation of fundamental rights brought by Ms Ortega following the unsuccessful conciliation proceedings in relation to her equal pay claim.
The court found it established that, between 2010 and 2017, the Chief Financial Officer had received lower remuneration than her male colleagues without any objective justification. In certain years, the disparity reportedly reached 40%. During the relevant period, the claimant’s annual salary ranged between €35,000 and €38,722, whereas her male counterparts earned between €43,000 and €49,000 per annum.
The first-instance judgment was based largely on the documentary evidence submitted by Ms Ortega. It was subsequently upheld by the High Court of Justice of Andalusia in February 2018 and became final in January 2019.
However, in July 2019, a different Labour Court in Málaga ruled that Ms Ortega’s disciplinary dismissal was fair and justified. The court found that she had circulated the document to various individuals, including some colleagues involved in the conciliation proceedings and her legal advisers. The disclosure was held to constitute a breach of confidentiality obligations amounting to serious misconduct warranting dismissal.
According to the court, although the purpose pursued by the employee, namely the pursuit of judicial proceedings, was legitimate, alternative means existed that would have been more respectful of the personal data rights of the affected employees. In particular, she could have requested the Labour Court to order disclosure of the relevant documents by the employer.
The labour judge also rejected the argument that the dismissal constituted retaliation for her complaints regarding pay discrimination. One of the most notable reasons advanced was that Ms Ortega had repeatedly raised the matter internally in the past, yet none of those complaints had triggered any disciplinary response from the employer.
That decision was upheld by the High Court of Justice of Andalusia in May 2020, notably by the same chamber that had confirmed in 2018 that Ms Ortega had been subjected to sex-based pay discrimination. The judgment became final in March 2021.
In parallel, in May 2017 the company initiated criminal proceedings against Ms Ortega for unlawful disclosure of confidential information. The Investigating Court in Málaga ordered the provisional dismissal of the case in June 2017. However, the Provincial Court of Málaga allowed the company’s appeal and ordered further investigation.
The investigating judge subsequently carried out various procedural measures, including questioning Ms Ortega as a suspect and examining several witnesses, before once again closing the proceedings. The company did not challenge that decision.
The first noteworthy legal issue arising from this case concerns the proper characterisation of the complaint. Before the Strasbourg Court, the applicant argued that her right to non-discrimination under Article 14 of the Convention, read in conjunction with her right to a fair hearing in civil matters under Article 6, had been violated.
The Fifth Section of the European Court of Human Rights took a different view. It held that the facts should instead be examined under Article 14, taken together with the right to respect for private life under Article 8 of the Convention.
Although this issue of legal classification did not affect the admissibility of the application, the judgment establishes an important precedent. Going forward, constitutional complaints and applications before the ECtHR concerning retaliation should, at the very least, invoke the right to private life under Article 18 of the Spanish Constitution and Article 8 of the Convention.
As regards the merits, the Court held that the Spanish authorities had failed adequately to discharge their positive obligation to protect the applicant against discriminatory treatment by a private actor, namely her employer.
The judges unanimously concluded that Ms Ortega’s right to non-discrimination under Article 14, read in conjunction with her right to respect for private life under Article 8, had been violated.
The Court acknowledged that the case involved a conflict between two competing interests. On the one hand stood Ms Ortega’s right not to be discriminated against on grounds of sex. On the other stood the data protection rights of the individuals whose personal and salary information had been disclosed in support of her claim.
According to the Court, the Spanish judicial authorities failed to take into account several relevant factors in balancing those interests, thereby reaching a conclusion incompatible with the rights guaranteed to Ms Ortega under the Convention.
First, the Chamber emphasised the prolonged period of gender-based pay discrimination suffered by the applicant, who had repeatedly reported the issue internally without receiving an adequate response.
The Court expressly expressed its perplexity regarding the domestic courts’ reasoning that, because the applicant had made repeated internal complaints without suffering retaliation, the subsequent dismissal could not be linked to her discrimination claim.
The Strasbourg judges criticised the national authorities for failing to appreciate the fundamental distinction between internal complaints and the judicialisation of the dispute, which commenced on 6 April 2017 with the filing of the conciliation claim.
The fact that the dismissal occurred barely one month after Ms Ortega first brought the alleged sex discrimination before a public authority should, in the Court’s view, be regarded as a strong indication of retaliation.
As the applicant’s representatives rightly argued, the domestic courts’ reasoning leads to an absurd result: it allows the causal connection between a disciplinary measure and a prior report to the authorities or public disclosure to be denied merely because the employee had previously raised the issue internally without provoking any reaction from the employer.
Secondly, the Chamber highlighted the employer’s failure to respond appropriately to the repeated internal complaints lodged by the Chief Financial Officer.
Thirdly, it considered highly relevant the purpose pursued by the applicant in disclosing the information, which was plainly legitimate: exposing a situation of gender pay discrimination.
Fourthly, the Court observed that the disclosure had a very limited impact. Indeed, none of the affected individuals ever brought any claim or complaint arising from the disclosure.
Finally, the Chamber held that dismissal constituted a disproportionate sanction, a factor which could itself be regarded as further evidence of retaliatory intent.
As this case clearly illustrates, the line separating the status of retaliation victim from that of a suspect in criminal proceedings may be exceedingly thin.
Provisions such as Article 38 of Spanish Law 2/2023 on whistleblower protection are intended to reduce legal uncertainty in cases of this kind. Yet neither their theoretical foundations nor their practical scope are entirely clear. Further doctrinal analysis and judicial development in this area remain both necessary and desirable.
Dr Albert Estrada
Head of Internal Investigations Department