CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 4 décembre 2025

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SPAIN (Application no. 36325/22)   JUDGMENT   Art 14 (+ Art 8) • Discrimination • Positive obligations • Domestic courts’ upholding of applicant’s dismissal allegedly in retaliation for her successful claim of discrimination based on sex in relation to her remuneration • Dismissal based on applicant’s disclosure of payroll information as head of the finance department • States’ positive obligation to ensure effective protection against reprisal by employers following discrimination claims on grounds of sex • Domestic courts’ approach defective • Failure to engage in the consequence that the dismissal negated the applicant’s protection against discrimination as afforded in separate proceedings • Failure to give sufficient weight to context of persistent sexual discrimination against the applicant and her unsuccessful attempts to end it internally • Failure to give sufficient weight to the purpose of the disclosure of private information and its limited impact • Failure to give sufficient weight to severity of the measure which could be indicative of retaliatory motive • Insufficient reasons given for upholding dismissal in case-circumstances • Failure to fulfil positive obligations to ensure effective protection against discrimination based on sex in the context of employment and equal remuneration   Prepared by the Registry. Does not bind the Court.   STRASBOURG 4 December 2025   FINAL   11/05/2026   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Ortega Ortega v. Spain, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Kateřina Šimáčková , President ,   María Elósegui,   Gilberto Felici,   Andreas Zünd,   Diana Sârcu,   Mykola Gnatovskyy,   Vahe Grigoryan , judges , and Victor Soloveytchik, Section Registrar, Having regard to: the application (no.   36325/22) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Spanish national, Ms   Maria de la Peña Ortega Ortega (“the applicant”), on 12   July 2022; the decision to give notice to the Spanish Government (“the Government”) of the application; the parties’ observations; Having deliberated in private on 12 November 2025, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The application concerns the domestic courts’ alleged failure to provide adequate protection against retaliation in the judicial proceedings concerning the applicant’s dismissal. It raises issues under Articles 8 and 14 of the Convention. THE FACTS 2.     The applicant was born in 1969 and lives in Alhaurín de la Torre. She was represented by Mr A. Del Castillo Garcia, a lawyer practising in Malaga. 3.     The Government were represented by their co-Agent, Ms H. E. Nicolás Martínez. 4.     The facts of the case may be summarised as follows. 5.     Between 1994 and 2017 the applicant worked for a company that provided administrative services to a bank and to other companies belonging to the bank’s group. The applicant was the head of the finance department and, as part of her functions, she oversaw the staff payrolls. In 2017 she was involved in three different sets of judicial proceedings against the company.         proceedings concerning the APPLICANT’S discrimination claim 6 .     On 6 April 2017 the applicant brought a conciliation claim ( papeleta de conciliación ) against the employer company in the Mediation, Arbitration and Conciliation Centre. She alleged that she was being discriminated against on grounds of sex, as she was receiving a lower remuneration than the rest of her colleagues who were in the same position, all of whom were men. She asked for equal remuneration and an amount in compensation. The claim included a detailed account of the sums received by each head of department in respect of various elements, including salaries and incentives, over several years. 7.     In the absence of a settlement, on 8 June 2017 she lodged a judicial claim for the protection of her fundamental rights ( tutela de derechos fundamentales ) under Article 177 of the Employment Proceedings Act, reiterating her claims and asking for equal remuneration and for an amount in compensation for the pecuniary loss she had suffered on account of that discrimination. As the previous conciliation claim, the judicial claim also included a detailed account of the remunerations of her colleagues, the use of which was not challenged by the company. 8.     On 10 August 2017 Malaga Employment Tribunal no. 2 upheld the applicant’s claim. 9.     The Employment Tribunal noted that the company was divided into four departments and that all the heads of department were men, except for the applicant. Their payrolls included two elements: the salary and the incentives, without any objective system in place to determine those incentives, which were based on the unilateral and discretional decision of the company. 10 .     Referring to the data contained in the applicant’s claim – and without objecting to its use – the Employment Tribunal compared the applicant’s remuneration with the remunerations of the other persons in the same position. It observed that between 2010 and 2017 the incentives granted to the other heads of departments had increased, while those of the applicant had remained unchanged or had even been reduced in some periods. In 2017 the company had decided to remove the incentives and the corresponding sums had been consolidated as part of the salary of each head of department. As a result, the applicant had had a consolidated annual salary of 33,672   euros   (EUR), which had been lower than in previous years (EUR   35,000 in 2010 and EUR 38,722 in 2016), while her colleagues had had consolidated salaries ranging from EUR 43,000 to EUR   49,000. Consequently, during the relevant period, all the heads of the different departments had had salary increases of between 22% and 34% except for the applicant, whose salary had been reduced by 3.83%. The salary gap had thus extended from less than EUR 1,000 to EUR 14,000 annually. In addition, she had been refused some specific bonuses granted to her colleagues and had been awarded a lower amount. 11.     The Employment Tribunal held that those facts showed the existence of unjustified differences in salary, complained of by the applicant, which correlated with the sex of the heads of division and gave rise to “a suspicion” of discriminatory treatment. In those circumstances, the company had the burden of justifying that such differences were reasonable and based on objective grounds. However, the evidence had shown that the salary gap had been determined, unilaterally and progressively, by the company’s manager, who had fixed the incentives discretionally, without any objective criteria, a fact which had been confirmed by him and by the other heads of department. The company had not shown that the different incentives had been based on a level of performance or achievement or on the basis of a higher strategic relevance of some departments over others. In sum, the company had failed to discharge its burden, as there was no evidence that the work carried out by the applicant had been of a lower value than the work of her colleagues in the context of the company’s activity. 12 .     The Employment Tribunal, therefore, declared the existence of sex-based discrimination in relation to the applicant’s remuneration. It ordered the company to adjust the applicant’s salary from January 2017 to meet the salary increase granted to her colleagues (that is, to EUR 48,950.16) and to pay compensation in the amount of EUR 35,000 for the damage caused by that discrimination, including non-pecuniary damage. 13 .     On 14 February 2018 the Andalusia High Court dismissed an appeal lodged by the company and upheld the Employment Tribunal’s judgment. It reiterated that it had been shown that the applicant had been receiving a lower salary than the male colleagues holding the same position and that the company had failed to demonstrate that such difference had been based on an objective and reasonable justification. It stated as follows: “It is indisputable that during the last years [the applicant] has received lower remuneration than the other heads of department, all of whom are men. Faced with these indications of discrimination, the company should have shown that this difference in remuneration of [the applicant] with respect to her colleagues, who hold similar professional categories, qualifications and positions of equal value (heads of department), had an objective and reasonable justification, free of any discriminatory purpose. Such justification has not been provided in the present case, as the [company] has merely pointed out that, in years well prior to [the period in question] ... the plaintiff received remuneration that was even higher than that of the other heads of department, that the different departments have different duties and responsibilities and that there are other company managers (regional representatives), men included, who receive lower pay than their female colleagues. This in no way constitutes an objective and reasonable justification for the different treatment concerning remuneration in respect of [the applicant] in recent years, especially considering that the extent to which the [applicant’s] department has fewer powers and responsibilities than the rest of the company’s departments has not been specified or clarified, and that in these proceedings, the [company] is not accused of discrimination based on sex with respect to all of the company’s female employees, but only and exclusively with respect to the [applicant]. Consequently, since the company has failed to refute the existence of discrimination in remuneration between the [applicant] and her male colleagues, the appeal must be dismissed and the first-instance court’s judgment regarding a violation of the right to equality and non-discrimination based on sex in respect of remuneration must be upheld.” It held that ordering the payment of fair remuneration starting from January 2017 was a logical consequence of the finding of a violation of the applicant’s rights, as it constituted an adequate reparation measure. Such conclusion was not affected by the fact that the applicant had been dismissed in May 2017, as the remuneration should be paid until that date, irrespective of any judicial decisions concerning the dismissal, in the event that the applicant challenged it. 14 .     On 9 January 2019 the Supreme Court declared an appeal on points of law lodged by the company inadmissible and the judgment of the High Court became final. On 15 March 2019 the compensation was paid to the applicant.       proceedings concerning the APPLICANT’S diSMISSAL 15 .     In parallel, on 2 May 2017 the applicant was dismissed from her job. In the letter informing her of her dismissal, the company stated that she had breached her duty of confidentiality and the company instructions regarding the protection of personal data. Specifically, she had disclosed personal data in her conciliation claim and she had shared it by email with third parties. The letter stated: “One of the inherent obligations of your position is the duty of confidentiality, as [this company], on account of its activity, manages documents containing highly sensitive and confidential information. This duty not only entails the impossibility of disclosing fiscal, commercial or other kind of data relating to the company’s clients, but also an absolute prohibition against using personal data that may be accessed while performing your functions for a different purpose than performing the assigned tasks. By an email of 7 April 2017, the company direction became aware that on 6   April you lodged a conciliation claim [concerning an alleged salary discrimination] ... To substantiate your claim, you included detailed monthly and annual salaries and annual incentives of the other four heads of department of the company, specifying their names and surnames, for the period between 2006 and 2016. [This is] highly sensitive and confidential information to which you had access as a consequence of the performance of your functions as head of the finance department. It is clear that such conduct is a flagrant breach of your basic obligations in terms of confidentiality, professional secrets and data protection established by relevant laws, which may even amount to a criminal offence. Besides, your conduct entails a serious breach of the instructions given by the company ... to protect the data on salaries and remunerations of the company’s staff, as well as your duty of confidentiality and [protection of] professional secrets ... This company has several files registered with the General Registry of the Spanish Data Protection Agency, including a file entitled ‘Human resources’. This file ... to which you have had access in the performance of your functions, has the purpose of managing salaries and human resources and has a [medium] level of security ... ... You are aware of the relevance of respecting the security of the personal data contained in those files and, to that aim, you were given a training guide on information security ... That guide, signed by you, contains the most relevant rules that you must respect when working with the information systems available for performing your functions ... There is no doubt that you had perfect and exact knowledge of the duties and obligations as regards the protection of those data as established by the relevant laws ... You were aware of the legal protection of those data and of the company’s duty to protect them, as well as the consequences for the company in the event of a failure to take the relevant measures. Nevertheless, in clear breach of the instructions given by the company, and being perfectly aware of your duty to protect personal data, you have disclosed, in your own interests in the context of the conciliation proceedings, personal and sensitive information of other employees ... when the adequate course of action would have been to request the data necessary for your claim from the court, which is entitled to request that information from the company, which, in its turn, is compelled to submit it without breaching the Personal Data Protection Act. The unlawfulness of your conduct is demonstrated by the fact that, being on temporary leave because of an incapacity to work and being aware of the prohibition, you pressured a subordinate ... to send you the list of payrolls of March [2017] ... Those events put the company at a grave risk of being sanctioned for a serious breach of the Personal Data Protection Act. Moreover, your conduct has not been limited to including the above-mentioned personal data in your claim ... but you have also disclosed them to third parties outside of the company. In particular, by emails of 6 and 7 April 2017 ... it has been shown that, before sending the conciliation claim to the company, the following email addresses had access to it [the email addresses of the applicant’s lawyers and the applicant’s personal account were listed] ... Furthermore, by the above-mentioned email of 7   April 2017, another person outside of the company, Mr M.A., also had access to the content of the claim. The facts above are even more serious for two reasons: (i) [this company] ... has highly protective mechanisms in its corporate email accounts and, nevertheless, you disclosed in the context of your claim personal data to non-corporate email addresses that did not have the required security and (ii) you participated ... in a training course on data protection ... as shown by the diploma issued ... in November 2016. In addition, those facts entail a flagrant violation of the instructions given by the company via an email of 14 November 2012 (addressed to you), ordering that the information on staff payrolls should not appear disaggregated for confidentiality reasons and to protect that information. Moreover, your conduct constitutes a clear breach of the document on confidentiality that you signed in July 2011 setting out the prohibition on using personal data, to which you had access in the performance of your functions, for a different purpose than performing the assigned work, as well as the prohibition on disclosing to any external party the information of which you had knowledge as a consequence of your professional duties. Thus, the described facts show totally conscious conduct on your part entailing a breach of the contractual good faith and an abuse of trust in the performance of the functions assigned, as well as clear disobedience in respect of the company’s instructions. Taking advantage of your situation and your position, you used, in a totally unjustified way, the sensitive and confidential information of other staff members, sending it to third parties. This makes it impossible for the company to maintain its professional relationship with you. Those facts constitute several professional infringements which are considered very serious, such as breach of contractual good faith, abuse of trust in the performance of work and lack of discipline or disobedience at work, as regulated in Article 54 §   2   (b) and (d) of the Labour Regulations ... Consequently, the company’s direction has decided to order your disciplinary dismissal, effective today, in respect of the infringement and [to impose] the maximum sanction on account of the seriousness of the facts and the breach of the trust placed in you.” 16.     On 18 May 2017 the applicant lodged a conciliation claim in relation to her dismissal, stating that it had been based on inaccurate reasons and should therefore be considered null and void or, alternatively, unlawful ( improcedente ). 17 .     In the absence of an agreement, she lodged a judicial claim on 14   June 2017. She argued that the dismissal had been in retaliation for her having lodged the previous claim concerning discriminatory remuneration. Therefore, her dismissal had to be considered null and void, as it had breached her right to be protected against retaliation ( garantía de indemnidad ). Alternatively, she asked for the dismissal to be considered unlawful, since the reasons given in the dismissal letter were not accurate. 18.     On 8 July 2019 Malaga Employment Tribunal no. 4 declared her dismissal from the company lawful ( procedente ), dismissing the applicant’s claim and upholding the company’s decision to dismiss her. 19 .     The Employment Tribunal declared it proved that the applicant had asked for an increase of her salary on multiple occasions between 2006 and 2013 and had complained about the differences in salary several times, both verbally and by email. It noted that the company had registered a file for human resources management with the Spanish Data Protection Agency with a medium level of security. It further observed that the applicant had been aware of the data protection policies: she had signed a confidentiality document, she had received specific training, she had received instructions from the managers by email and she had been informed of the possibility of sanctions in the event that she did not respect the relevant instructions. It was established that in January 2017, while she had been absent, and in March 2017, while she had been on temporary leave because of an incapacity to work, she had asked another colleague to send her a list of remunerations. On 7   April 2017 she had sent an email to four persons (Mr   P.E., Ms G.P., Mr   P.M. and Mr M.A.) containing the conciliation claim. Lastly, the Employment Tribunal observed that the applicant’s leave due to incapacity to work had been terminated in August 2018, its starting date and cause being unknown. Besides, the applicant had suffered from psychological and psychiatric distress prior to her dismissal and in September 2018 she had suffered from an episode of serious depression. 20 .     With regard to the alleged breach of her right to be protected against retaliation, the Employment Tribunal stated as follows: “[Pursuant to] Article 181 § 2 of the Employment Proceedings Act, an employee has to submit reasonable prima facie evidence ( indicio ) that company actions violated his or her fundamental rights, which, if verified, will result in a reversal of the burden of proof, requiring the defendant [the company] to show that there was an objective and reasonable justification, sufficiently proved, of the measures adopted and their proportionality. ... As established by the Constitutional Court’s case-law, where an employee complains of discriminatory treatment or a violation of fundamental rights as a result of a company decision, giving rise to a reasonable suspicion or presumption substantiating [such] allegation, the proof of the existence of a reasonable ground for such action must be shifted to the employer. [This] is a real burden of proof and not a mere ‘attempt at proof’, as the employer has to persuade the judge, not of a doubt, but of the certainty that the decision was completely unrelated to any discriminatory purpose ... ... When the right to be protected against retaliation is relied on, the right to effective judicial protection under Article 24 of the Spanish Constitution is not only affected by irregularities in the proceedings that result in a deprivation of procedural safeguards, but that right may also be breached when its exercise or the preparatory or necessary actions taken by the employee to lodge a judicial claim result in a reprisal from the employer ... The breach of the right to be protected against retaliation requires a prior action from the employee and a [resulting] reprisal from the company. The [applicant] alleges that her dismissal was a consequence of her discrimination complaint, in particular, after she lodged the conciliation claim on 6 April 2017. The evidence undermines a causal link between [those facts], as the documents show that before 6   April 2017 and on multiple occasions the [applicant] raised the same claim, without any resulting sanction or her dismissal; [rather, she was] simply ignored by the company ... In conclusion, the facts reveal that no causal link can be established between the conciliation claim lodged on 6 April 2017 and the applicant’s dismissal, as she raised several similar complaints with the company starting in 2006 and the company did not react to them. [This] refutes the causal link suggested by [the applicant] and there are therefore no sufficient signs of a breach of the right to be protected against retaliation. Besides, as will be explained, the [applicant] did engage in conduct that could be punished by dismissal.” 21 .     The Employment Tribunal went on to assess whether the dismissal could be considered unlawful. It observed, firstly, that the dismissal letter extensively detailed the relevant facts, the misconduct and the imposed sanction. Referring to sections 10 and 11 of the Personal Data Protection Act, the Employment Tribunal concluded that the applicant had committed very serious misconduct ( falta muy grave ), as set out in Article 54 § 2 (d) of the Labour Regulations and section 35(11) of the national collective agreement on administrative agencies in force at the relevant time. The Employment Tribunal stated as follows: “It is demonstrated on the basis of the evidence that [the applicant] communicated classified and sensitive information in respect of other heads of department of [the company], included in a file registered with the Spanish Data Protection Agency to which she 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. This conclusion is not refuted by her allegation, which is not supported by evidence, that she collected that information ‘by heart’, as, in any event, she had knowledge of those data on account of her functions in the company, without which she would not have had access to them, and she kept that information for years, despite the fact that once they had been reviewed every month, those data were irrelevant for [her work]. The fact that she used that information to bring judicial proceedings does not exonerate her from the obligations undertaken with the company, as, regardless of the legitimate aim she pursued, she could not unilaterally decide when, where and how to use the information protected by the Personal Data Protection Act. She should instead have used the relevant procedural mechanism to that end (preliminary proceedings or anticipated evidence) to obtain such information, with the legal consequences foreseen by the Employment Proceedings Act in the event of a failure by the company to submit that information. ... even in a hypothetical situation in which the exception of section 11(2)(d) of the Personal Data Protection Act is applicable, and leaving aside the judicial proceedings, [the applicant] would have also [been considered to have] committed very serious misconduct by using and communicating, for a purpose not related to her work, other persons’ protected personal data, without authorisation by the company or the affected persons, thereby breaching the duty of secrecy regulated in section 10 of the Personal Data Protection Act and the confidentiality document she signed on 7   July 2011, being perfectly well informed of the instructions which, on account of the nature of the information she managed, had been imposed by the company and the Personal Data Protection Act. This conduct is contrary to the loyalty due by every worker to the company he or she works for, regardless of any lack of financial damage to the company, [as] regulated by Article   5 of the Labour Regulations, breaching the balance of the relationship between employee and employer and preventing its restoration, as it is serious and punishable conduct, in view of the fact that [in the present case] the employee failed to respect the basic duties of her job, breaching, in sum, the trust placed on her by the company, as she knew its data protection policy so she was conscious of her reprehensible conduct. The ‘gradual theory’ cannot be applied to conscious breaches of good faith and contractual loyalty. Since the proved facts and [the applicant’s] misconduct constituted a lawful basis for her disciplinary dismissal, the decision is classified as lawful in accordance with Article   54 of the Labour Regulations and Article 108 § 1 of the Employment Proceedings Act and with the consequences provided for in Article 55 § 7 of the Labour Regulations and Article 109 of the Employment Proceedings Act.” 22 .     The applicant appealed against that judgment. She alleged that ruling out the existence of a reprisal on the basis of the existence of previous claims that had received no reaction from the company amounted to a denial of the workers’ right to judicial protection. Such reasoning would mean that any reprisal against an employee who had raised his or her complaints with the company prior to a judicial claim would be devoid of a causal link. Besides, while in previous claims she had complained in general about the different remuneration received, it was in the conciliation claim when she had argued for the first time that such difference had been based on discriminatory treatment on grounds of sex. Moreover, there had been a clear temporal connection between her conciliation claim and her dismissal, which had taken place within a period of less than a month. Lastly, the Employment Tribunal had not duly considered that the recipients of the disputed email had been persons belonging either to the same company or to the same business group, meaning that they could have had access to the relevant data and that the data had only been used to defend her rights. 23 .     On 13 May 2020 the Andalusia High Court, in a chamber composed of the same judges who had delivered the above-mentioned judgment of 14   February 2018 in the discrimination proceedings (see paragraph   13 above), dismissed the applicant’s appeal, stating as follows: “The dismissal letter [states that] by an email of 7 April 2017 the company knew that the previous day [the applicant] had lodged a conciliation claim with the Malaga Mediation, Arbitration and Conciliation Centre, claiming that there had been a salary gap ... That claim contained the monthly and annual salaries and annual incentives received by four heads of department, specifying their names and surnames, between 2006 and 2016. [The applicant] had access to that information as a consequence of her functions as head of the finance department. The content of that claim was communicated to persons outside of the company, as it was sent to the [personal email address of the applicant and email addresses of her lawyers] as well as to the email address of Mr M.A. [Even while] being in a situation of temporary inability to work, she sent an email to [an] employee of the finance department, who was directly managed by her, asking him to send her the payrolls of March 2017, to which he replied, sending the requested information. In the facts [part] of the contested judgment, the conduct attributed to [the applicant] in the dismissal letter was considered proved, as she had asked her subordinate for the information concerning the payrolls of March 2017, which she had obtained; the conciliation claim detailed the monthly and annual remunerations, disaggregated by various elements, of [the heads of department] between 2006 and 2016, and that claim was notified by [the applicant] through an email to the company, to the above-mentioned email addresses and to the email address of Mr M.A. It is true that the dismissal letter did not attribute to the applicant the sending of the above-mentioned email to Mr P.E, Ms G.P. and Mr P.M., which was also declared proved ... and that only the specific facts attributed in the dismissal letter can be taken into account. [The applicant], in her position of head of the finance department, had access to the file entitled ‘Human resources’, with a medium level of security, for the management of staff, remunerations and human resources ... On 7 July 2011 she signed a confidentiality document, committing not to use the personal data to which she had access for a different purpose than performing the assigned work, not to keep it in a different place from her workplace and not to communicate the data to persons outside of the company. Despite this, after collecting the information in that file, breaching the duty of confidentiality, she used it to substantiate her [discrimination] claim ... ... The conflict between the duty of confidentiality and her fundamental right not to be discriminated against may be assessed. However, even accepting that she was entitled to use the company’s classified data, to which she had access because of her job, to substantiate a [discrimination] claim, that conflict would under no circumstances entitle her to communicate those data to persons outside of the company, namely the owners of the above-mentioned email addresses and Mr   M.A. Despite the allegations in the appeal, it has not been shown that the recipients of that email ... had previous knowledge of the classified data contained in the conciliation claim, it being irrelevant to that effect the fact that two of those [recipients] worked in other companies in the same business group ... Besides, the applicant had not obtained prior authorisation from her colleagues to use the data on their remuneration. Sending the conciliation claim to those persons, without a justifying reason, was a manifest breach of sections   10 and   11 of the Personal Data Protection Act, in relation to Article   5 § d of the Labour Regulations, which entails an infringement of the contractual good faith established in Article   54 § 2 (d) of the Labour Regulations. The prima facie evidence of a violation of [the applicant’s] right to be protected against retaliation, resulting from the fact that her dismissal was subsequent to the filing of a conciliation claim on a wage gap, is undermined, more than by the reiteration of verbal claims throughout her period of employment, by the veracity of the facts attributed in the dismissal letter. Consequently ... the appeal is dismissed and the [first ‑ instance judgment] upheld.” 24.     The applicant subsequently lodged an appeal on points of law, reiterating her claims and submitting other judgments that, in her view, provided for a different legal outcome in relevantly similar situations. On 24   March 2021 the Supreme Court declared the cassation appeal inadmissible, stating that the two judgments submitted for contrast were not based on similar situations and did not raise similar issues. 25.     The applicant lodged an amparo appeal with the Constitutional Court, alleging a violation of her right to effective judicial protection and of her right to equality (under Articles 24 and 14 of the Spanish Constitution respectively). 26 .     The applicant reiterated that the dismissal had solely been based on her previous claim against the company of discrimination based on sex with regard to her salary and, therefore, it had been in breach of her right to be protected against retaliation. She stressed in this regard the immediate temporal connection between her discrimination complaint, lodged in April 2017, and the dismissal, decided in May 2017. In practice, this had deprived the favourable judgment concerning the remuneration discrimination of its effect, as the termination of the contract meant that she did not receive the sums recognised as fair remuneration in that judgment. The applicant also asserted that the judicial decisions on her dismissal had therefore been incoherent and had not duly taken into account her right to not to be discriminated against. In particular, the courts had considered that a generic declaration on confidentiality could hamper her right to lodge a remuneration discrimination claim. They had therefore failed to balance the applicant’s fundamental rights with her colleagues’ right to privacy. The applicant stressed that she had obtained that information lawfully, that the information had been indispensable for arguing her claim, that there had been no other means offering a higher level of protection of those data and that the workers affected had not suffered any damage, so there had been no real breach of their rights. She further alleged that the use of that data had been accepted in the discrimination proceedings, so upholding her dismissal on that basis had been contradictory. She argued that, on the other hand, the Employment Tribunal had considered an element not included in the dismissal letter – the sending of the email to external persons – as a ground for her dismissal and that the identity of the recipients, her relationship with the company and their knowledge of the relevant data had not been discussed in the proceedings before the Employment Tribunal. The applicant insisted that her dismissal should be considered null and void, as it had been decided in breach of her fundamental rights. In sum, the discriminatory conduct of the company – as demonstrated by the domestic courts – had remained without any relevant consequences. 27 .     In order to justify the constitutional relevance of the amparo appeal, the applicant argued, firstly, that it raised an issue in which there was no constitutional case-law. Specifically, the decision on inadmissibility of the appeal on points of law had resulted in a breach of the right to be protected against retaliation. On the other hand, there was a need to clarify the relations between the different rights involved (the right not to be discriminated against, the right to communicate and receive information, the right to be protected against retaliation and the right to effective judicial protection), affected by the denial of access to an appeal on points of law, resulting in the upholding of the reprisal. The constitutional relevance would result from determining whether, indirectly, from the perspective of access to an appeal, an outcome in breach of the right to be protected against retaliation could be upheld. A failure to examine an alleged reprisal on the basis of the strict admissibility criteria of the Supreme Court would result in a situation of immunity for companies who acted in breach of fundamental rights. 28.     On 17 January 2022 the Constitutional Court declared the amparo appeal inadmissible, stating that the applicant had not duly fulfilled the obligation to justify its constitutional relevance.     CRIMINAL proceedings AGAINST the APPLICANT 29.     On 30 May 2017 the company accused the applicant of unlawful disclosure of secrets on the basis of the same facts contained in the dismissal letter. 30.     On 27 June 2017 Malaga investigating court no. 7 decided to stay the proceedings ( sobreseimiento provisional ), considering, firstly, that the circumstances in which the applicant had seized the relevant data were unclear and, secondly, that the purpose had not been to disclose the secrets or violate the private lives of third parties, but to demonstrate relevant information in the framework of proceedings against the company. 31.     On 11 December 2017 the Malaga Audiencia Provincial upheld an appeal lodged by the company against that decision. It noted that the use of unlawfully obtained information on salaries to substantiate a judicial claim had in some cases been considered an offence in family law cases and that that case-law could, in principle, be applicable in other areas. On the other hand, the investigating judge had not taken any investigative measures to determine the way in which the seizure of the data had taken place. Lastly, even accepting that the applicant had not had an intention to disclose that data, she had been aware that she had not been entitled to access and disclose such information. The Audiencia Provincial thus sent the case back to the investigating court to take investigative measures, as requested by the company. 32.     The investigating court, after examining the applicant and several witnesses, delivered a new decision staying the proceedings. It stated that the applicant had had access to the data on account of her position at the company and it reiterated that her purpose had not been to disclose the secrets or violate the private lives of third parties, but to demonstrate relevant information in the framework of the discrimination proceedings against the company. It noted that the existence of the alleged discrimination had been recognised in those proceedings and that the company had not argued that the evidence had been unlawfully obtained. It appears that that decision was not challenged by the company. RELEVANT LEGAL FRAMEWORK AND PRACTICE         DOMESTIC LAW AND PRACTICE 33 .     The Institutional Law 3/2007 of 22 March 2007 on effective equality between women and men, in so far as relevant, provides: Article 5. Equal treatment and opportunities in access to employment, vocational training and promotion, and working conditions “The principle of equal treatment and opportunities for women and men, applicable in the field of private and public employment, shall be guaranteed, under the terms provided for in the relevant legislation, in access to employment, including self-employment, in vocational training, in professional promotion, in working conditions, including remuneration and dismissal, and in membership and participation in trade unions and employers’ organisations or in any organisation whose members exercise a specific profession, including the benefits granted by them”. Article 9. Protection against reprisal “Any adverse treatment or negative effect suffered by a person as a result of lodging a complaint, claim, report, lawsuit or appeal of any kind, intended to prevent discrimination and demand effective compliance with the principle of equal treatment of women and men, shall also be considered discrimination on the basis of sex”. 34 .     The relevant provisions of the Labour Regulations, as applicable at the relevant time, stated as follows: Article 5. Workers’ duties “The basic duties of workers are: (a) to fulfil the specific obligations of their job, in accordance with the rules of good faith and due diligence; (b) to observe the occupational risk prevention measures adopted; (c) to comply with the employer’s orders and instructions in the regular exercise of their managerial powers; (d) to refrain from competing with the company’s activities under the terms established in this law (e) to contribute to improving productivity; [and] (f) any other duties arising, where applicable, from the relevant employment contracts. ... ” Article 17. Non-discrimination in employment relations “1. Any regulatory provisions, clauses in collective agreements, individual agreements and unilateral decisions by the employer that give rise to direct or indirect discrimination based on sex ... in employment, as well as in matters of remuneration, working hours and other working conditions, shall be considered null and void. Any orders to discriminate and any decisions by the employer that constitute unfavourable treatment of workers in response to a complaint brought within the company or to an administrative or judicial action aimed at demanding compliance with the principle of equal treatment and non-discrimination shall also be considered null and void. ...” Article 54. Disciplinary dismissal “1. The employment contract may be terminated by a decision of the employer through dismissal on the basis of a serious and culpable breach of contract by the employee. 2. The following shall be considered breaches of contract: ... (b) insubordination or disobedience at work; ... (d) breach of contractual good faith and breach of trust in the performance of work.” Article 55. Form and effects of disciplinary dismissal “1. The employee must be notified in writing of the dismissal, stating the grounds on which it is based and the date on which it will take effect. Collective agreements may establish other formal requirements for the dismissal. ... 3. Dismissals shall be classified as lawful, unlawful or null ( procedente, improcedente o nulo ). 4. A dismissal shall be considered l