March 13, 2026
by Dr. Beril Önder
In the case of Ortega Ortega v. Spain (4 December 2025), the European Court of Human Rights (ECtHR or the Court) delivered a significant judgment concerning a highly relevant issue for gender equality: effective judicial protection against discrimination on the grounds of sex in the context of employment and equal remuneration. The case concerned the dismissal of a woman following her successful claim of discrimination based on sex in relation to her remuneration. The applicant alleged that her employer had dismissed her in retaliation for having lodged that claim. The judgment provided the Court with an important opportunity to further develop its case law under Article 14 of the Convention in the specific context of equal pay—an area that had not previously been examined in depth in its jurisprudence.
Between 1994 and 2017, the applicant worked for a company that provided administrative services to a bank. She was the head of the finance department and, as part of her functions, she oversaw the staff payrolls
On 6 April 201, the applicant brought a conciliation claim (papeleta de conciliación) against the employer company in the Mediation, Arbitration and Conciliation Centre, claiming that she was discriminated against on grounds of sex, as she was receiving a lower remuneration than the rest of her male colleagues – other three department heads of the company – who were in the same position. In the absence of a settlement, she initiated judicial proceedings before an employment tribunal. The applicant provided the tribunal with a detailed account of the sums received by each head of department in respect of various elements, including salaries and incentives, over several years. The company did not challenge the use of this information during the proceedings, and it could not show that the difference in remuneration of the applicant with respect to her colleagues, who held similar professional categories, qualifications and positions of equal value, had an objective and reasonable justification. On 10 May 2017, the employment tribunal upheld the applicant’s claim, finding that she had been subjected to sex-based discrimination in relation to her remuneration and ordered the company to adjust her salary and pay compensation. The company’s appeals against the decision were dismissed.
In parallel, on 2 May 2017, the applicant was dismissed on the grounds that she had breached her duty of confidentiality and the company’s data-protection rules by disclosing personal data in support of her discrimination claim and by sharing that information with third parties via email. She lodged a conciliation claim and subsequently brought a judicial claim challenging her dismissal, contending that the measure had been in retaliation for her claim concerning discriminatory remuneration. The employment tribunal rejected her claim and upheld the company’s decision. The employment court noted, among other things, that the applicant had communicated classified and sensitive information in respect of other heads of department of the company to which she had had access owing to her position, to other staff of the company and to third parties not related to the company without the authorisation of the company or the affected persons, using them for her personal benefit and for a purpose unrelated to her functions, and that she should have requested the remuneration data through the domestic courts. All subsequent appeals of the applicant were likewise unsuccessful. The applicant’s amparo appeal on the ground of sex-discrimination with the Constitutional Court was also dismissed.
Lastly, the company also lodged a criminal complaint against the applicant of unlawful disclosure of secrets on the basis of the same facts cited in her dismissal. The investigating court stayed the proceedings, finding that she had accessed the data by virtue of her position and used it not to reveal secrets or violate privacy, but to substantiate her discrimination claim. It observed that the discrimination had been acknowledged and that the company had not alleged any unlawful collection of evidence in those proceedings.
Relying on Articles 6 and 14 of the Convention, the applicant complained that the domestic courts had failed to protect her against retaliation for her successful sex-discrimination complaint by upholding her dismissal. The Court examined the complaint under Article 14, taken in conjunction with Article 8 of the Convention.
The Court found that the facts of the case fell within the ambit of Article 8 and held that the question whether Article 14, taken in conjunction with Article 8, gave rise to a positive obligation to protect in circumstances such as those of the present case should be examined on the merits.
At the outset, the Court examined whether the respondent State’s positive obligations under Article 14 taken in conjunction with Article 8 of the Convention extended to affording protection against allegedly retaliatory dismissal following a claim of sex discrimination. It answered this question in the affirmative.
The Court first reiterated its findings in Danilenkov and Others v. Russia (delivered in the context of discrimination against trade union members) that “individuals affected by discriminatory treatment should be provided with an opportunity to challenge it and should have the right to take legal action to obtain damages and other relief” (para. 75). It then, referred to several international treaties recognising the right to equal remuneration, and as an important aspect of that right, the right to be protected against measures taken by the employer, in particular dismissal, in reaction to complaints which were aimed at enforcing compliance with the principle of equal treatment (para. 78). On that basis, the Court emphasised that “the States’ positive obligations under Article 14 in conjunction with Article 8 of the Convention require 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” (para. 80). In this connection, the Court stated that the domestic courts “must have due regard to the allegedly retaliatory nature of the impugned measure and the context and carefully balance the relevant interests at stake, providing relevant and sufficient reasons to justify their decisions” (para. 80).
As regards compliance with the positive obligation at issue, the Court first observed that there were no deficiencies in the regulatory framework applicable in Spain that might entail a violation. In this connection, it also noted that the European Committee of Social Rights had found the situation in Spain concerning the obligation to guarantee equal pay to be in conformity with the European Social Charter and its Protocols.
The Court then examined whether the manner in which the employment tribunals had applied domestic law afforded sufficient protection of the applicant’s right not to be discriminated against, read in conjunction with her right to respect for her private life. In particular, it considered whether the domestic courts had taken due account of the relevant context, including the need to protect individuals from retaliatory measures where sex discrimination had already been established, and whether they had properly balanced the competing interests at stake. To that end, the Court assessed whether the reasons relied on by the domestic authorities were relevant and sufficient to justify the applicant’s allegedly retaliatory dismissal.
Firstly, the Court was not convinced by the domestic courts’ argument that the dismissal could not have been retaliatory because the applicant had previously raised discrimination complaints with the company without being subjected to any retaliatory reaction by the company. It observed that no retaliatory measures had been taken while she had confined herself to internal complaints; however, once she had brought her claim before an external administrative or judicial body on 6 April 2017, the allegedly retaliatory measure had “followed swiftly” (para. 86). It further noted that her earlier internal complaints about the pay gap had not been framed as allegations of sex discrimination and that the employer’s failure to respond to repeated internal complaints could not, in the circumstances, be regarded as evidence of the absence of retaliatory intent.
Secondly, the Court considered that the domestic courts had adopted a defective approach in striking a balance between the conflicting interests at stake, namely, “on the one hand, the applicant’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” (para. 88).
The ECtHR acknowledged that the disclosure of private information in the context of work may call for disciplinary measures or sanctions against an employee, since the protection of personal data is of fundamental importance for the enjoyment of the right to respect for private and family life under Article 8 of the Convention. The Court further accepted that the company had a duty to safeguard its employees’ privacy and was entitled to take measures to ensure compliance with professional obligations in that regard.
However, the Court identified several shortcomings in the domestic courts’ assessment of whether the dismissal —an especially severe disciplinary measure— had been justified in the particular circumstances of the case, having regard to the context and to the need to secure effective protection against discrimination.
First, the domestic courts had not genuinely engaged with the effect of the dismissal in negating the protection afforded to the applicant in the separate anti-discrimination proceedings. Second, they had “failed to give sufficient weight to relevant elements such as the context of persistent sexual discrimination to which the applicant had been subjected, the repeated failure by the company to react to the applicant’s attempts to end it via internal means, the purpose of the disclosure of private information, the limited impact of such disclosure, and the severity of the measure taken against the applicant, which could be indicative of a retaliatory motive” (para. 95).
Accordingly, the Court considered that the domestic courts had not provided sufficient reasons to uphold the applicant’s dismissal in the circumstances of the present case and concluded that the respondent State had failed to fulfil its positive obligations to ensure effective protection against discrimination on the grounds of sex in the context of employment and equal remuneration. It therefore found a violation of Article 14 of the Convention, taken in conjunction with Article 8 of the Convention.
Ortega Ortega v. Spain is not the first judgment in which the Court has found a respondent State to have failed in its duty to provide effective judicial protection against discrimination, nor is it the first to articulate the guiding principles of its case law in this area. It is, however, a meaningful addition to the Court’s sex discrimination case law under Article 14 of the Convention. The judgment may be seen as the Court’s first detailed engagement with a case concerning pay-related sex discrimination. It stands out for its careful analysis of the State’s positive obligations to secure real and effective protection against discrimination on grounds of sex in the context of employment and equal remuneration.
This is particularly significant against the backdrop of the persistent gender pay gap across Europe, which continues to reflect structural inequalities affecting women in the labour market. Given that the advancement of gender equality is a major goal of the Convention system (para. 74), it was especially important for the Court to address this issue with due regard to its importance. Against this background, several aspects of the judgment demonstrate that the Court conducted a thorough assessment of the case.
It should first be noted that the Court expressly relied on other international human rights instruments and treaties that explicitly guarantee the right to equal remuneration for women and men, thereby providing a basis for the adoption of a higher standard of protection in its interpretation of the Convention. In the judgment, the Court highlighted that “the right to equal remuneration is recognised by several international treaties – including the European Social Charter, the Treaty on the Functioning of the European Union, the Charter of Fundamental Rights of the European Union, several EU directives, the International Labour Organization Equal Remuneration Convention and the UN Convention on the Elimination of All Forms of Discrimination against Women – some of which have been in force, including in respect of Spain, for several decades” (para. 78). The Court also referred to the European Social Charter and EU directives, to underline that “the right to be protected against measures taken by the employer, particularly dismissal, in reaction to complaints which were aimed at enforcing compliance with the principle of equal treatment are considered an important aspect of the right to equal remuneration” (para.78).
Based on the foregoing, and reiterating the States’ positive obligations under Article 14, taken in conjunction with Article 8, the Court conducted a thorough examination of the domestic courts’ decisions to determine whether they had provided relevant and sufficient reasons for dismissing the applicant’s claim.
The Court did not lay down clear principles defining the limits between the legitimate use of confidential information in support of a discrimination claim and its unlawful disclosure, instead leaving that assessment to the domestic courts, which must conduct a careful balancing exercise in light of the circumstances of the case. However, it identified certain criteria to be applied by the domestic courts in their assessment of the measures taken by an employer allegedly in retaliation against employees for their discrimination complaints. In particular, domestic courts are required to undertake a careful assessment of the discriminatory context, the purpose and impact of any disclosure of information, and the severity of the disciplinary sanction before upholding a dismissal.
Ortega Ortega v. Spain constitutes a noteworthy contribution to the Court’s case-law on sex discrimination under Article 14 of the Convention. In this judgment, the Court engaged in depth, for the first time, with a complaint concerning equal pay between women and men—an issue reflecting a persistent and structural form of gender inequality across Europe. By carefully scrutinising the reasoning of the domestic courts and clarifying the State’s positive obligations in this context, the Court provided guidance that may strengthen the judicial response to discrimination in the context of employment and equal remuneration.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
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