All companies, of any size and without exception, have the obligation to prepare and implement in their organization an internal protocol against sexual harassment and discrimination based on sex. The art. 48 of the Equality Law establishes that: “companies must promote working conditions that prevent sexual harassment and harassment based on sex and arbitrate specific procedures for its prevention and to channel complaints or claims that may be made by those who have been subject to it.” The art. 7.1 of the Equality Law defines sexual harassment as “any verbal or physical behavior of a sexual nature which has the purpose or produces the effect of violating the dignity of a person, particularly when an intimidating, degrading environment is created.” or offensive”. The art. 7.2 of the Equality Law defines harassment based on sex as “any behavior carried out based on the sex of a person, with the purpose or effect of violating their dignity and creating an intimidating, degrading, or offensive environment.” Therefore, companies have the obligation to: > Promote working conditions that prevent sexual harassment and harassment based on sex. > Create and implement action, protection and prevention measures against sexual and gender-based harassment.
What can happen if you don’t have the protocol or if you have it, but you don’t use it properly?:
- Both the Workers’ Statute and the Law on Violations and Sanctions in the Social Order establish among the basic rights of workers respect for their privacy, sexual orientation, self-image, and dignity at work and consider it a very serious infringement, sexual harassment and for reasons of sex, which may be cause for disciplinary dismissal of the harassing person and just cause for the harassed person to request the termination of their employment contract with the right to compensation.
- The Law on Violations and Sanctions in the Social Order, in art. 8 includes, as very serious infractions, sexual harassment, as well as for reasons of sex, when it occurs within the scope of the powers of business management, whatever the active subject of the same, provided that, known by the employer, he had not taken the necessary measures to prevent it.
- The art. 40 establishes that this type of infraction will be penalized with fines that can range from 6,251 euros in its minimum degree to 187,515 euros in its maximum degree, and in addition, aid, bonuses and any derived benefit will be automatically lost. Of the application of employment programs and the exclusion of access to such benefits for a period of six months to two years. Obviously, the alleged victim of sexual harassment or harassment based on sex, apart from the means provided in the sexual harassment protocol, can go to the Labor Inspectorate, the Social Courts, or the Criminal Courts. Both the Labor Inspectorate as well as the Social Courts and Tribunals, positively value the fact that companies have anti-harassment protocols in place in their organizations, so that whenever it is proven that said protocols are activated if there is a complaint and they work with correction, it constitutes an element to mitigate the seriousness of the eventual economic sanction. If you want more information or receive advice on this matter, you can contact the labor legal department of POCH ABOGADOS.
