Judgment Ortega Ortega v. Spain - successful litigant in sex discrimination proceedings dismissed from her job

issued by the Registrar of the Court   ECHR 283 (2025)   04.12.2025   Spanish courts upheld applicant’s dismissal after her successful equal pay   claim, failing to protect her from discrimination   The case of Ortega Ortega v. Spain (application no. 36325/22) concerned the applicant’s dismissal   from her job, following a claim made by her of sex discrimination.   In today’s Chamber judgment1 in the case, the European Court of Human Rights held, unanimously,   that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction   with Article 8 (right to private life) of the European Convention on Human Rights.   In 2017 a sex discrimination claim brought by Ms Ortega Ortega against her employer was upheld by   an employment tribunal. In the meantime, she was dismissed from her job on the grounds of a   breach of confidentiality, having disclosed personal data in the context of the discrimination claim.   She brought a second set of proceedings, alleging that her dismissal had been retaliatory. In 2019   the decision to dismiss her was upheld, the employment tribunal holding that she had committed   very serious misconduct by using and communicating other person’s protected personal data, for a   purpose not related to work. Subsequent appeals by Ms Ortega Ortega against that decision were   declared inadmissible.   The Court held, in particular, that the reasons given by the national courts in upholding the   applicant’s dismissal had not been sufficient. The dismissal had had the effect of negating the   protection against discrimination afforded in the separate discrimination proceedings and the   national courts had not engaged with that consequence. Furthermore, they had failed to give   sufficient weight to relevant elements which could have been indicative of a retaliatory motive.   A legal summary of this case will be available in the Court’s database HUDOC (link)   Principal facts   The applicant, Maria de la Peña Ortega Ortega, is a Spanish national who was born in 1969 and lives   in Alhaurín de la Torre (Spain).   Between 1994 and 2017 Ms Ortega Ortega worked as head of the finance department for a   company that provided administrative services to a bank. As part of her functions, she oversaw staff   payrolls. On 6 April 2017 Ms Ortega Ortega brought a conciliation claim (papeleta de conciliación)   against her employer, arguing that she had been discriminated against on grounds of sex, as she was   receiving lower renumeration than the rest of her colleagues who were in the same position, all of   whom were men. She asked for equal remuneration and compensation. In the absence of a   settlement, on 8 June 2017 she lodged a judicial claim for the protection of her fundamental rights,   reiterating her arguments. On 10 August 2017 the Malaga Employment Tribunal no. 2 upheld her   claim.   In parallel, on 2 May 2017 Ms Ortega Ortega was dismissed from her job. In the letter informing her   of her dismissal, her employer stated that she had breached her duty of confidentiality and company   1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,   any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges   considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final   judgment. If the referral request is refused, the Chamber judgment will become final on that day.   Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.   Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.   policy regarding the protection of personal data. Specifically, she had disclosed personal data in   connection with her formal complaint and she had shared it by email with third parties.   On 18 May 2017 Ms Ortega Ortega lodged a conciliation claim in relation to her dismissal. In the   absence of an agreement, she initiated court proceedings on 14 June 2017, arguing that her   dismissal had been in retaliation for her having lodged the discrimination claim. On 8 July 2019 the   Malaga Employment Tribunal dismissed her claim and upheld the decision to dismiss her, finding no   causal link had been established between the formal complaint made on 6 April 2017 and her   dismissal and holding that she had committed very serious misconduct. An appeal by Ms Ortega   Ortega against that judgment was dismissed by the Andalusia High Court. On 24 March 2021 the   Supreme Court declared inadmissible an appeal by Ms Ortega Ortega on points of law and on 17   January 2022 the Constitutional Court declared inadmissible an amparo appeal.   Complaints, procedure and composition of the Court   Relying on Articles 6 (right to fair hearing) and 14 (prohibition of discrimination), Ms Ortega Ortega   complained that, by upholding her dismissal, the domestic courts had failed to protect her against   retaliation for her successful complaint of sex discrimination.   The application was lodged with the European Court of Human Rights on 12 July 2022.   Judgment was given by a Chamber of seven judges, composed as follows:   Kateřina Šimáčková (the Czech Republic), President,   María Elósegui (Spain),   Gilberto Felici (San Marino),   Andreas Zünd (Switzerland),   Diana Sârcu (the Republic of Moldova),   Mykola Gnatovskyy (Ukraine),   Vahe Grigoryan (Armenia),   and also Victor Soloveytchik, Section Registrar.   Decision of the Court   The Court took the view that the issues raised ought to be addressed from the perspective of Article   14 of the Convention, taken in conjunction with Article 8.   The Court considered that the State’s obligations under those Articles 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. 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 and the Court did not   discern any deficiencies in respect of the relevant regulatory framework. The Court had, therefore,   to determine whether the application of the domestic law by the employment tribunals which had   examined Ms Ortega Ortega’s case had provided sufficient protection of her rights.   The national courts had been faced with several conflicting interests, that is, on the one hand, Ms   Ortega Ortega’s right not to be discriminated against on grounds of sex 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 hand, the right to the protection of her colleagues’ personal data and the   company’s duty to protect that data. The national courts had been required to strike a balance   between those interests and to assess whether the dismissal – a severe disciplinary measure – had   been justified in the specific circumstances of the case.   2 While the domestic courts had not challenged Ms Ortega Ortega’s position regarding the reasons for   her disclosing the payroll information, they had not sufficiently taken into account the fact that   there had been a situation of longstanding conflict between her and her employer in respect of sex   discrimination, that she had suffered discriminatory treatment for several years, as later   acknowledged by the national courts, and that she had complained repeatedly to no avail. Without   questioning the national courts’ finding that the disclosure of the payroll data had been in breach of   Ms Ortega Ortega’s duties as an employee, the Court considered that the above-mentioned   elements were highly relevant to the assessment of the context and gravity of that breach and,   therefore, to the justification for the type of disciplinary measure that the employer had chosen to   impose. An assessment of the facts above, was in turn, undoubtedly relevant to the question   whether retaliatory intent had motivated, at least partly, the dismissal.   In the Court’s view, the domestic courts had upheld Ms Ortega Ortega’s dismissal by applying an   approach, not compatible with the positive obligations regarding protection against discrimination.   Her dismissal had had the effect of negating the protection against discrimination afforded in the   separate discrimination proceedings and the national courts had not engaged with that   consequence. Furthermore, the national courts had failed to give sufficient weight to relevant   elements such as the context of persistent sex discrimination to which Ms Ortega Ortega had been   subjected, the repeated failure by her employer to react to her attempts to end it through internal   means, the purpose of the disclosure of private information, the limited impact of such disclosure,   and the severity of the measure taken against her, which could have suggested a retaliatory motive.   There had therefore been a violation of Article 14 of the Convention taken in conjunction with   Article 8.   Just satisfaction (Article 41)   The Court held that Spain was to pay the applicant 12,000 euros (EUR) in respect of non-pecuniary   damage.   The judgment is available only in English.   This press release is a document produced by the Registry. It does not bind the Court. Decisions,   judgments and further information about the Court can be found on www.echr.coe.int.   Follow the Court on Bluesky @echr.coe.int, X ECHR_CEDH, LinkedIn, and YouTube.   Contact ECHRPress to subscribe to the press-release mailing list.   Where can the Court’s press releases be found? HUDOC - Press collection   Press contacts   [email protected]e.int | tel.: +33 3 90 21 42 08   We are happy to receive journalists’ enquiries via either email or telephone.   Claire Windsor (tel: + 33 3 88 41 24 01)   Tracey Turner-Tretz (tel: + 33 3 88 41 35 30)   Denis Lambert (tel: + 33 3 90 21 41 09)   Inci Ertekin (tel: + 33 3 90 21 55 30)   Jane Swift (tel: + 33 3 88 41 29 04)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe member   States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   3