What is the scope of the obligation for companies in Spain to have equality and non-discrimination policies for LGBT persons?
Published on 26th Nov 2024
All companies with more than 50 employees should carefully evaluate their situation after the approval of the regulation
In Spain, from March 2024, companies with more than 50 employees will be obliged to implement measures to promote equality and non-discrimination for this group of employees. The regulation describing the practical aspects of this obligation came into force on 10 October 2024.
On 10 October 2024, Royal Decree 1026/2024, of 8 October, came into force, which develops the content and scope of the obligation that article 15.1. of Law 4/2023, for the real and effective equality of trans people and for the guarantee of the rights of LGBT people, imposed on companies with more than 50 employees to have a package of planned measures to guarantee equality and non-discrimination of this group.
The regulation gives collective bargaining agreements a leading role in determining the package of planned measures applicable in the companies within its scope. To this end, the regulation stipulates that if the relevant sectoral collective bargaining agreement is already in force on the date of entry into force of the regulation, its negotiating committee must meet before 10 January 2025 in order to negotiate the package of planned measures.
If this is not the case, the obligated companies that fall within its scope must provisionally apply the minimum content set out in Annexes I and II of Royal Decree 1026/2024 until the measures are approved at collective level.
Collective bargaining agreements
Only companies with their own collective bargaining agreement or those not covered by a sectoral collective bargaining agreement have to negotiate their own measures.
Those with a collective bargaining agreement or company collective bargaining agreement, or those without a collective bargaining agreement but with legal employee representation, must set up a negotiating committee and start negotiations before 10 January 2025.
Those with no bargaining agreement and no legal employee representation must set up a special negotiating body and start negotiations before 10 April 2025.
If no agreement is reached within three months of the start of negotiations, the company must provisionally apply the minimum content set out in Annexes I and II of Royal Decree 1026/2024 until the measures are approved at collective level.
Minimum content
There are requirements for minimum content in the planned measures.
They require equal treatment and non-discrimination clauses with explicit reference to sexual orientation and identity, gender expression or sexual characteristics.
Measures are required to eliminate stereotypes in access to employment, such as specific training for people involved in selection procedures and the establishment of objective criteria that prioritise the training or suitability of the person for the job, regardless of their sexual orientation and identity or gender expression, with special attention to trans people as a particularly vulnerable group.
There should be objective criteria for classification, career advancement and promotion (such as qualification and capacity), free from direct or indirect discrimination against LGBT persons.
Specific modules need to be included in the company's training plans that are aimed at the entire workforce (including managers) on the following topics: general knowledge of the package of measures planned; knowledge of the basic concepts of sexual, family and gender diversity contained in the regulations; knowledge of the protocol for accompanying trans people at work, if one exists, and of the protocol against harassment or violence based on sexual orientation and identity, gender expression and sexual characteristics; and promotion of the use of inclusive language.
Heterogeneity in the workforce should be promoted to achieve diverse, inclusive and safe working environments.
Leave, benefits and rights should be accessible without discrimination on the basis of sexual orientation and identity and gender expression (including leave to attend medical consultations or legal proceedings, with special attention to transgender people).
The introduction of infringements and sanctions is required for behaviour that violates employees' sexual freedom, sexual orientation and identity, and gender expression into the disciplinary system.
Osborne Clarke comment
Annex II of the regulation specifies the minimum content of the protocol on measures against harassment and violence against LGBT persons. It is explicitly stated that this obligation can be considered fulfilled if the company has a general protocol against harassment and violence that includes measures for LGBT people, or if it specifically extends it to them.
In conclusion, all companies with more than 50 employees should carefully evaluate their situation after the approval of this regulation, carefully monitoring the applicable deadlines and requirements and, where appropriate, future legal developments that may be approved by sectoral collective barganing agreements.
