LGTBI Protocols: awaiting regulations
Iberian Lawyer talks to labour experts about the implementation of LGTBI protocols in companies and the changes it will bring about in the business world
Image: Enrique Ceca Gómez-Arevalillo, partner in charge of the labour area of Ceca Magán Abogados; Talmac Bel, partner in charge of the labour law, social security and immigration team at Fieldfisher, and Miguel Pastur, partner in charge of the International HR Services department at Bird & Bird.
by julia gil
The year 2023 was marked by significant labour developments that influenced Spanish companies. In fact, during this new year, companies continue to face challenges that go beyond operational and financial management. Harassment protocols, equality plans or the implementation of whistleblowing channels are some of the examples of how companies have to adapt to a constantly changing society.
Before 2 March 2024, all companies with more than 50 employees must have a set of measures to guarantee and promote real and effective equality for LGTBI people in the workplace, including a protocol for the prevention of harassment directed at this group. These measures to be implemented by the company must be agreed with the legal representation of the workers, although, in the event of not having it, the labour partner at Fieldfisher, Talmac Bel, recommends approving it unilaterally “as a precautionary measure while awaiting the regulatory development of the obligation”.
What is striking is that these measures are fully enforceable despite the fact that the regulatory development has not been provided by the Government, which forces companies to apply certain subjective criteria when it comes to implementing them. Fortunately, as the Fieldfisher partner explains, they must be agreed and are subject to collective bargaining, through trade unions, legal representatives or other negotiating committees, so it is to be expected that they will be interpreted in a much more professional manner.
LGTBI Protocol
Pending regulatory development, the previous steps that must be taken to establish LGTBI harassment protocols are: carrying out a diagnosis of the situation of LGTBI people in the company; defining the objectives of this; designing measures to alleviate the deficiencies identified; establishing monitoring and evaluation indicators.
Specifically, the diagnosis phase could be considered the most controversial phase, as it involves inquiring into the personal or private data of the lives of the company’s employees, what the Fieldfisher partner calls “personal data of a special nature”. According to Bel, the regulation does not provide a legitimate legal basis for processing data related to the gender identity or sexual orientation of employees, and he therefore recommends “collecting the data anonymously, for example through work climate surveys”.
Changes in the business fabric
