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The recent ruling of the Labor Division of the Supreme Court (SC) of May 7 declares that when unions fail to respond to a company’s request for the negotiation of an equality plan, this does not automatically enable the company to unilaterally approve the plan. Only in exceptional—and substantiated—situations of negotiation deadlock could this approval be justified, and always provisionally.
Context
One of the issues that has caused the most judicial conflict regarding the negotiation of an equality plan is the valid constitution of the negotiation committee. Companies required to negotiate an equality (those with 50 or more employees) plan must do so according to the rules of the Workers Statute (“WS”) that regulate collective bargaining. This implies, among other considerations, setting up the negotiating committee following the guidelines laid down in article 5 of Royal Decree 901/2020, of October 13, regulating gender equality plans and their registration (“RD 901/2020”), in relation to articles 87 to 89 of the WS.
Previous case law
It was not until the ruling of April 11, 2024, that the SC resolved the situation of negotiation deadlock that arose when companies without workers’ legal representatives tried to form the negotiation committee, but did not obtain a response from the unions within the 10-day period provided for in article 5.3 of RD 901/2020.
In this ruling, the Supreme Court exceptionally upheld the unilateral approval of an equality plan without negotiation with the unions in the absence of a response (for more details, see our post The Spanish Supreme Court upholds the registration of equality plans not negotiated with the unions in the absence of a response, in Spanish).
Ruling of May 7, 2025
This exception is not absolute, and its application to the negotiation of a specific equality plan must be approached with caution. This is the focus of the SC in its recent ruling of May 7. While reiterating the exceptional solution of unilaterally approving an equality plan, it clarifies that that it is not sufficient for the 10-day period to elapse without the unions responding to the company’s request for the approval of the equality plan without union negotiation to be valid.
Although the regulation of article 5.3 clearly aims to establish a dynamic and pragmatic negotiation process, the lapse of the 10-day period alone does not automatically enable this alternative; it is necessary to exhaust all possibilities for negotiation, as the requirement that the equality plan be the result of negotiation in the terms established under RD 901/2020 is not an alternative, but a legal obligation.
Impact on companies
In short, this ruling once again highlights the need to approach the negotiation of an equality plan with proper advice from the beginning of the process, as formal aspects such as the call to the social partners and constituting the negotiation committee may condition, from the outset, the registration of the plan with the Registry of Collective Agreements and Equality Plans (REGCON).
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