Gender Equality Plans: The Spanish Supreme Court limits control of labor authority

Summary of the development

In a recent judgment by its labor division, the Spanish Supreme Court (“SC”) has defined the scope of control given to the Spanish labor authority when approving the registration of a gender equality plan, establishing that the administration can only exercise a formal control over equality plans. This decision brings greater legal certainty for companies, but it also requires maximum diligence when negotiating and documenting the plan to avoid risks of legal action or inspection by the labor authorities (ITSS).

Background

Registering an equality plan in the Registry of Collective Agreements and Equality Plans or “REGCON“ is a requirement for considering that a company is in compliance with the legal requirement to have an equality plan in line with article 46.5 Act 3/2007, on effective gender equality and article 11 Royal Decree 901/2020, of October 13, governing equality plans and their registration (“RD 901/2020”).

The issue analyzed in recent judgment by the SC Labor Division no. 461/2025, of May 27  addresses whether the labor authority is acting within its competences or exceeding its jurisdiction by denying registration of an equality plan based on substantive issues.

In the case analyzed, the labor authority denied registration of the company’s equality plan based on two reasons: (i) the incorrect constitution of the negotiating committee, as it was not in line with article 5.3 RD 901/2020, with only representatives of labor union federations representing all the work centers (also of those with legal representatives, that had delegated their committee representation to the federations); and (ii) the omission of the minimum obligatory content, such as salary audits.

The case was referred to the SC Labor Division because the company challenged the denial, claiming that (i) the labor authority had exceeded its review of legality, and (ii) the negotiating committee was correctly constituted.

SC ruling

The judgment, in its definition of the labor authority’s control, distinguishes between two types of situations: 

• those over which the labor authority can exercise formal control, checking for the “minimal appearance of validity”; and
• those for which the labor authority, under the appearance of formal control, carries out its own assessments of the substance of the agreement, questioning the validity of the negotiation or the suitability of the plan’s content, which exceeds its duties.

The SC refers to cases already analyzed, such as those resolved in its judgments of February 14, 2017 (126/2017, appeal 104/2016), January 26, 2021 (95/2021, appeal 50/2020) and April 5, 2022 (303/2022, appeal 99/2020), in which the equality plan was negotiated by an ad hoc committee of workers, without any legal representation of the workforce, thus depriving the plan of any minimal appearance of validity as a collective bargaining agreement; therefore, its rejection could be considered legitimate from a formal perspective.

Implication for companies

The judgment limits the labor authority’s role in the registration of equality plans, restricting its involvement to a formal control and reserving any assessment of substantive issues or of legality for the courts and the Labor Inspectorate (“ITSS”). While waiting for the labor authority to issues its criteria, from now on, companies that meet the formal requirements should receive fewer requests for correction in administrative proceedings before registering in the public registry, depending on the criteria adopted by the different labor authorities.

However, the labor authority continues to have the powers to deny registration if the “minimal appearance of validity” is not achieved, which is a vague legal concept that can lead to interpretations and controversy. Therefore, although the judgment seems to provide greater security and foreseeability in the processing of equality plans, companies must maximize diligence in the documentation and legitimacy of the negotiating process, as any query about the legality of an equality plan could lead to the need to take legal action, which could prolong the process and increase business costs.

Also, regarding unilaterally approved equality plans—see Post | Equality plans: limits on unilateral approval)—, where we warn of the possibility of a more rigorous control of legality, based on the judgment we have analyzed, we would expect the labor authority to refer its control of legality to the courts and to the ITSS.

In this scenario, it is essential to receive solid advice that guarantees compliance with the regulation and enables companies to meet the regulation correctly and efficiently.