After a summer of missed transposition deadlines, leaked drafts and speculation, Spain has finally published its draft Royal Decree. Released on 3 August 2026 and open to public consultation until 24 August 2026, the draft aims to partially transpose the EU Pay Transparency Directive. Although Spain’s draft Royal Decree is unlikely to take effect as early as the end of August 2026 – theoretically the earliest possible ‘go-live’ date had been 25 August - employers with operations in Spain should prepare for a potentially very short runway before new national obligations take effect.
In this article, we examine what employers need to know about Spain's draft Royal Decree and the steps they should be taking now to prepare.
Spain's existing pay transparency framework
Spain already has a relatively well-developed equality and pay transparency framework. It is built on the Workers’ Statute and Royal Decree 902/2020 on equal pay for women and men. Article 28.2 of the Workers’ Statute requires all companies to maintain a pay register covering their entire workforce. Additionally, employers with 50 or more employees must prepare and apply an equality plan every four years, unless material changes affecting the workforce occur in which case it needs to be renewed sooner. Preparing an equality plan must include:
- conducting a pay audit; and
- having an action plan to remedy unjustified pay differences.
There is a separate but related obligation, for companies with at least 50 employees, to include a justification in the pay register where the average remuneration of workers of one sex exceeds that of the other by 25% or more.
Spain’s approach to transposition builds on this existing framework. As a result, the completeness of Spain’s transposition of the Directive’s requirements is a complex and nuanced question. This article explains how Spain’s existing framework together with the draft Royal Decree as currently worded will under-implement, meet, and gold-plate the Directive’s requirements, depending on the obligation and size of the employer.
The draft Royal Decree: our key watchouts
Spain’s draft Royal Decree may be amended further following the public consultation. However, employers with operations in Spain should focus on the following points which show the Spanish Government’s direction of travel.
Timeline for adoption
The draft does not state a fixed provisional go-live or ‘in-force’ date. Instead, it confirms it will take effect the day following its publication in the Official Gazette.
A Royal Decree is a form of secondary legislation that can be adopted by the Government without a parliamentary vote. In principle, it could have been published in the Official Gazette, the day after the consultation closed, on 25 August 2026. That outcome was always unlikely and has not come to pass - because even though it may be secondary legislation, the consultation must still be followed by an approval process. That could include incorporating amendments which can take time.
While it is impossible to predict with certainty when the Royal Decree will be adopted or published, our current estimate is that publication is most likely to occur during autumn 2026 (between September and November). Employers should monitor the Official State Gazette closely and start preparing now, if they have not already.
That leaves employers with operations in Spain facing significant uncertainty. 1 September is imminent (or past, depending on when you are reading this) and workers’ rights to request pay information (‘RTI’) is set to take immediate effect. To avoid being caught out if the Royal Decree does take effect early in that window, employers should aim to have processes in place to respond to pay information requests by the middle to end of September 2026. If RTI obligations are effective as early as 1 September, this should still allow time to respond to any requests within the two-month statutory deadline. Although, employers who expect to receive RTI requests but will not be able to respond to them by 1 September (assuming the Royal Decree takes effect then, implementing RTI obligations from the same date) should have a resourcing plan in place for October 2026. If many RTI requests are received and those processes are not in place until the end of September 2026, that may mean October becomes a busy month for the relevant teams.
Limits on employee requests for pay information (RTI requests)
The draft introduces the right for employees to make RTI requests – and in response to receive written information on:
- their individual remuneration; and
- average remuneration, expressed both annually and per hour, broken down by sex, for categories of worker doing the same work or work of equal value.
Employers must provide that information within a reasonable time but no later than two months after the request is made.
This is the same core obligation as contained in the Directive. Spain’s draft, however, limits requests to one per year, unless ‘changes’ justify a further request. The draft does not define what these relevant changes might include. A reasonable interpretation is that the change must be relevant to or have a meaningful impact on the information sought. For example, a change to the employee’s pay, the applicable pay level or their classification, the composition of the relevant comparator group, or the employer’s pay structure. Until further guidance is available, employers should assess any request made outside the annual cycle on its particular facts and provide a reasoned response.
A request may be made directly by the employee, through the workers’ representatives or, where appropriate, through the Institute of Women (Instituto de las Mujeres).
Ordinarily workers’ representatives are the works council or employee delegates, or union sections where they hold the relevant majority. In workplaces without legal union representation, Spanish equality-plan rules use a union commission composed of the most representative unions and representative unions in the relevant sector (‘Workers’ Representatives’). However, the draft does not define this term for these purposes, leaving the precise scope unclear.
Companies will also be required to inform all employees, at least annually, of this right and of the procedure for exercising it.
Employers should ensure that their existing pay-register processes are set up in a way that will allow them to respond to RTI requests in a compliant way. To do this, they should ensure they can identify relevant categories of worker and retrieve annual and hourly figures in a manner that protects personal data in compliance with the EU GDPR.
Effective date of the right to information obligation
Spain’s draft Royal Decree is silent on the effective date of the RTI obligations set out above. As a result, the duty will take effect immediately from the Royal Decree’s effective date.
Many Spanish employers will already hold much of the data needed to respond to these requests because of the existing requirement to maintain a pay register. However, having data is not enough. Employers will need a process for identifying the relevant comparator group (category), retrieving annual and hourly figures, protecting personal data and producing a written, accessible response within the two-month response period.
Gold-plated pay gap reporting thresholds
The draft Royal Decree aligns with the EU Pay Transparency Directive’s pay gap reporting timetable:
- Employers with 250 or more employees must report for the first time by 7 June 2027 and annually thereafter.
- Employers with between 150 and 249 employees must report for the first time by 7 June 2027 and then every three years thereafter.
- Employers with between 100 and 149 employees must report for the first time by 7 June 2031 and then every three years thereafter.
Spain’s draft Royal Decree gold-plates this requirement by extending pay gap reporting obligations to employers with 50 – 99 employees. These employers must report for the first time by 7 June 2031 and every three years thereafter.
Spain’s existing equality framework treats the 50-employee threshold as the main trigger for obligations to maintain equality plans, conduct pay audits and implement action plans. With this in mind, it is not surprising that the draft Royal Decree adopts the same threshold for pay gap reporting.
These employers must already maintain a pay register which records the average and median amounts received, both annually and hourly, broken down by sex and the applicable classification system. The register must separately identify basic salary, each salary supplement and each extra-salary payment. This broadly aligns with the seven reporting metrics contained in Article 9(1) of the Directive. The reporting duty will, however, create a new obligation to submit data to the proposed Commission for Monitoring Pay Transparency.
The draft’s impact assessment considers that this extension should not create a significant additional compliance burden because the employers should already hold most of the underlying data. Even so, employers must still devote time to data validation, methodology, consultation and submission in preparation for the new pay reporting obligations.
Pre-employment pay range disclosures
The draft Royal Decree does not include any provisions providing for the pre-employment pay transparency requirements set out in Article 5 of the EU Pay Transparency Directive.
In particular, the draft does not:
- introduce a specific right for applicants to receive the initial pay or pay range (and relevant CBA provisions) for the prospective role sufficiently early to facilitate an informed and transparent negotiation on pay; nor
- contain an express prohibition on asking applicants about their pay history.
Existing Spanish equality and pay-transparency rules require objective and non-discriminatory pay practices, but do not meet the Directive’s requirements in this regard. This is therefore a significant area of under-implementation, and it looks to stay that way; the regulatory impact assessment does not suggest it will be the subject of further legislative proposals despite doing so for other parts of the Directive which are missing from the current draft Royal Decree, like sanctions and burden of proof.
Restrictions on discussing pay
The Directive requires Member States to ensure that workers are not prevented from disclosing their pay for the purpose of enforcing their rights to equal pay. This includes prohibiting contractual terms that restrict employees from disclosing pay information.
The draft Royal Decree does not expressly address contractual pay-secrecy restrictions. Nor does the existing Spanish legislation create an equivalent prohibition on such clauses. Unless this gap is filled through amendments, this is another area in which the draft Royal Decree will under-implement the Directive.
No joint-pay assessments
Article 10(1) of the Directive requires a joint pay assessment with workers’ representatives where a pay report reveals a gender pay gap of at least 5% in a category of workers, the employer cannot justify the difference on objective and gender-neutral criteria, and the difference has not been remedied within six months (‘JPA’).
Spain already requires a pay audit as part of the equality plan in companies required to have such a plan. The draft Royal Decree does not, however, reproduce the Directive’s specific joint-pay-assessment mechanism, including its 5% threshold, its relationship with periodic pay reporting or its precise procedural role for workers’ representatives.
Points factor job evaluation
Spanish law already requires employers to conduct a job evaluation as part of the pay audit prepared when drawing up an equality plan. The evaluation must objectively assess factors relevant to each job, including its duties, the education, professional and training requirements, working conditions, and the degree of effort and responsibility the role entails.
The draft Royal Decree does not introduce a new obligation, but it makes the existing requirement more explicit. As part of the evaluation, employers must assign a score or numerical value to each job and use analytical systems that meet the standards of adequacy, completeness and objectivity.
The draft does not mandate a specific points-factor methodology and does not endorse any particular tool or system. Instead, it reinforces the need for a documented analytical evaluation that demonstrates jobs have been assessed using objective, gender-neutral criteria. Multinational grading systems may still be used, but only if they can meet those requirements in practice. Employers should not assume that a global levelling tool alone will satisfy the Spanish standard.
We expect this new framework to increase scrutiny of employers’ job evaluation methodologies and the evidence supporting them.
Does employers’ duty to address unjustified pay gaps meet the Directive’s standard?
Spain’s existing framework requires employers within the equality-plan regime to carry out a pay audit and to implement measures through the equality plan. It also requires a justification in the pay register where the relevant 25% threshold is met.
The Directive’s approach is different. Its joint-pay-assessment mechanism is linked to mandatory reporting for employers within the Directive’s reporting scope and is triggered where the specified conditions, including a 5% gap and absence of objective and gender-neutral justification, are satisfied. If passed in its current form, the draft Royal Decree would make the following enhancements to Spain’s existing framework:
- pay audits will now need to identify and analyse pay differences and the reasons for them;
- where a pay audit identifies a gap that cannot be justified, the employer must prepare an action plan specifying: (i) objectives; (ii) concrete measures; (iii) responsible persons; and (iv) a timetable; and
- an unjustified pay difference of any amount must be remedied within a reasonable period and, in any event, no later than within six months.
This is a meaningful strengthening of the existing Spanish framework. However, it does not replicate the JPA mechanism required by Article 10(1) of the Directive. The Directive ties the JPA process to its mandatory pay gap reporting provisions which apply to employers with 100 or more employees. Therefore, our view is that Spain’s approach amounts to:
- gold-plating in respect of employers with up to 99 employees, because they are exposed to a mandatory remediation process under Spain’s law which the Directive would not apply to them;
- gold-plating in respect of employers with 100 or more employees who discover an unjustified pay gap of less than 5%. Article 9(10) of the Directive would require them to remedy the situation within a reasonable time in close cooperation with workers’ representatives, the labour inspectorate and/or the equality body. Contrastingly, Spain’s draft Royal Decree would require them to comply with a mandatory remediation process regardless of the size of the pay gap and justify the situation within six months;
- under-implementation in respect of employers with 100 or more employees because in contrast to the JPA remediation process that the Directive says should apply to them:
- a reported 5% gap does not automatically trigger a joint assessment with workers’ representatives;
- the draft does not follow the specific remedial process set out in Article 10; and
- it does not require an additional joint assessment if the six-month period expires without correction.
There is also a notable lack of clarity regarding if, and to what extent, employers must review any reported pay gap data to determine if it reveals an unjustified pay gap. The draft Royal Decree does not require employers to conduct a new full pay audit every time they publish their pay-gap data. However, its wording requires employers to remedy an unjustified pay gap within six months. This sits uncomfortably with Spain’s existing framework, because the assessment of the pay gap data would form part of the pay audit process which can be conducted as infrequently as once every four years. It is unlikely that the Spanish Government only expects employers to analyse their pay gap data to identify unjustified pay gaps this infrequently. We think it is more likely that the intention is for employers to be obliged to carry out some analysis – that stops short of a full pay audit – of their pay gap data each time it is published. However, in our view, the current wording of the draft Royal Decree does not apply that duty or define precisely what it entails if it is intended to apply.
What about the burden of proof and penalties?
The draft Royal Decree is silent on new rules concerning the burden of proof and penalties, although the Directive contains requirements in both areas. The regulatory impact assessment accompanying the draft Royal Decree indicates that further legislative amendments may be considered to Spain’s existing Social Jurisdiction Act (Law 36/2011) and the Law on Social Order Infringements and Sanctions (TRLISOS).
Even so, Spain already has an important procedural safeguard when it comes to discrimination proceedings. Once the claimant establishes facts from which discrimination can be inferred, the employer must provide an objectively and reasonably justified, sufficiently evidenced explanation for the alleged discriminatory measure and demonstrate its proportionality. Neither Spain's existing laws nor the draft Royal Decree, however, automatically reverse the burden of proof merely because an employer has breached a pay-transparency obligation which is what the Directive requires.
Existing Spanish law may also impose substantial sanctions where conduct amounts to discrimination or breaches equality-plan obligations. Very serious labour infringements carry fines from €7,501 to €225,018, with the precise amount determined by the applicable statutory grading criteria. In addition, certain equality-related infringements can lead to ancillary consequences, including the loss of public aid, subsidies and employment-related benefits, and the exclusion from access to them for a specified period. The applicable classification and ancillary consequences will depend on the infringement.
However, the draft Royal Decree does not yet set out how breaches of the new pay reporting or information-right obligations will be classified under this existing framework. It is therefore unsafe to assume at this stage that a particular fine will automatically apply to a breach of the new duties contained in the draft.
Takeaways for employers
Employers with operations in Spain should begin preparing now. While the timing of the draft Royal Decree's adoption remains uncertain, some obligations, including the duty to respond to RTI requests – a new process employers with operations in Spain will need to adapt to – will almost certainly take effect immediately from the Decree’s effective date.
In particular, employers should:
- Map pay categories and structures - Ensure clear, documented criteria exist for categorising workers into groups performing the same work or work of equal value.
- Assign responsibility for employee information requests - Test the process for retrieving, validating and communicating annual and hourly remuneration data within the required two-month period.
- Review job-evaluation methodology - Ensure it is analytical, documented, objective and demonstrably gender-neutral.
- Assess existing equality-plan audits - Check whether existing equality-plan pay audits would support timely identification, justification and correction of unjustified differences in pay.
- Review confidentiality clauses and recruitment processes – This review should be carried out against the Directive’s requirements, even though the draft Royal Decree does not yet expressly regulate these areas.
- Monitor legislative developments - Track the final text of the draft, implementing guidance and any separate legislative proposals on sanctions, burden of proof and the remaining elements of the Directive not currently transposed under the draft.
The direction of travel is clear. Businesses with employees in Spain should not wait for the final text to begin improving their pay data, job-evaluation processes and governance arrangements. At the same time, they should distinguish carefully between obligations already imposed by Spanish law, obligations proposed under the draft Royal Decree and the Directive’s requirements that still appear to require further transposition.
This article was prepared jointly by Lewis Silkin and Sagardoy, the UK and Spanish members of Ius Laboris. As the leading global alliance of employment, immigration and pensions law firms, Ius Laboris brings together specialist expertise across 56 jurisdictions to deliver informed, practical insights on international workplace issues.
