Supreme Court reduces the conditions small businesses must meet in equality plans

The Supreme Court (TS) has ruled that self-employed people with businesses without worker representatives who have the obligation to present equality plans (PIE) may prepare them without the planned intervention of the unions “if it has been impossible to obtain a response from them”, as Luis San José, labour lawyer and partner at the AGM Abogados firm, clarified.

This also applies to self-employed people with businesses with less than 50 workers, in which the equality plan is mandatory to prepare “when the applicable collective agreement so requires,” as the lawyer pointed out. In turn, there may be cases in which the competent labour authority agrees in the sanctioning procedure to replace the accessory sanctions with the preparation and application of a PIE, as stated in Royal Decree 901/2020.

Until now, when businesses without a works council or worker representatives – the small ones – were obliged to create and implement an equality plan, the procedure had to be carried out ” by making a call to the majority unions, to form a table negotiator with whom to prepare the plan.” This plan must subsequently be registered in the REGCON -Registration and Deposit of Collective Agreements, Collective Labour Agreements and Equality Plans- so that it can be validated.

However, as stated in the ruling and experts have denounced, “many businesses are not getting a response from the unions” to create the negotiating commission with which to draw up their plans. For this reason, the ruling dictates that in businesses without worker representatives, the registration of an equality plan prepared by the company without the participation of the Legal Representatives of the Workers or the most representative unions is admissible, and that, in addition, ” the registration has to validate it,” added San José.

As the ruling clarifies, the company to which it alludes reiterated the call to the unions to be able to form the negotiating table with which to manage the equality plan for more than a year. According to the ruling, a company with several workplaces without legal representation of the workers, developed an equality plan (PIE) whose content had to be corrected.

To this end, at the beginning of 2021 he sent an email to the most representative unions in order to establish the PIE negotiating table, without receiving a response within the following ten business days – the maximum period in which the commission must be formed.

Given the lack of response, the business submitted by electronic means the request for registration of its equality plan in the REGCON, but later received a request from the Administration to document the constitution of the PIE negotiating commission, since It is one of the formal requirements that are required for its preparation and registration in the registry.

Later, the company asked the Administration to extend the deadline to resolve the lack of a negotiating commission with the unions and present the PIE with the appropriate modifications, since it only received a response from one of them. However, he again stated to the Administration at the end of the year that he still had not obtained a satisfactory response from the majority unions.

As the verdict states, the business spent, in total, “a period of more than a year” trying to establish the negotiating commission to move forward with the PIE. Thus, the business ” develops the plan without a social part, that is, unilaterally, after more than a year requiring the assistance of the unions to form the negotiating table,” said Luis San José.

Subsequently, the General Directorate of Labour rejected the registration of the PIE and the company appealed and filed a lawsuit, with the Superior Court of Justice of Madrid agreeing because it was “ without weapons to constitute the negotiating commission and in a situation of a negotiating blockade .” The case reached the Supreme Court, which has ratified the arguments of the TSJM, which is why it admits the development of the plan without the participation of the workers’ representatives or the most representative unions, the lawyer explained.

The TS also rules that ” the unilateral nature of the equality plan does not prevent its registration, and the lack of a negotiating commission due to a cause beyond the control of the company must be assimilated to a plan adopted without an agreement.”