Finding ourselves at the end of 2022, we must remember that the establishment of a protocol on sexual and gender-based harassment has been mandatory for all companies for a long time.
Protocol on sexual harassment
Sexual harassment shall be understood as any behavior, verbal or physical, of a sexual nature that has the purpose or has the effect of violating the dignity of a person, in particular when an intimidating, degrading or offensive environment is created. And for harassment based on sex, any behavior carried out based on a person's sex, with the purpose or effect of violating their dignity and creating an intimidating, degrading or offensive environment.
Recently, the Organic Law 10/2022, of September 6, on the comprehensive guarantee of sexual freedom (LO 10 / 2022), remember this obligation.
To this day, the percentage of companies that have it is still a very low percentage, with the consequence of being exposed to sanctions by the Administration.
But the truth is that article 12.1 of LO 10/2022 also includes the obligation for companies to arbitrate specific procedures for the prevention of psychological harassment.
Protocol on psychological harassment
Psychological harassment has traditionally been understood -according to jurisprudential compendium- "any behavior that violates the dignity of the worker, repeatedly, potentially harmful and that occurs or originates in the workplace, or as a consequence of it".
Thus, article 12.1 of LO 10/2022 establishes a mandatory minimum content to be met: provision of specific procedures for its prevention, which allow the channeling of complaints or claims that may be made by those who have been victims of these conducts, including specifically those suffered in the digital field and the promotion of awareness and training -in the field of sexual harassment- for the integral protection against sexual violence to all the personnel at your service.
Likewise, we are aware that the Labor and Social Security Inspectorate in some cases has already initiated disciplinary proceedings for breach of the obligation to implement the Protocol on sexual harassment and the Protocol on psychological harassment.
From the Tomarial Labor Area We are especially interested in drawing attention to these obligations, since we recently had the opportunity to review sexual harassment protocols approved under LO 10/2022 that made no reference to psychological harassment. The obligation, let us remember, belongs to both protocols.
Furthermore, the Law 15/2022 of July 12, comprehensive for equal treatment and non-discrimination ( "15 / 2022”), establishes in its article 26 the nullity by operation of law of the provisions, acts or clauses of legal transactions that constitute or cause discrimination due to any of the reasons provided for in its article 2.1, being the one with the greatest media notoriety, the which results from "disease or health condition".
That is why there have been multiple doctrinal articles, published since the entry into force of Law 15/2022, that have ruled on the possible consequences of the dismissal of a worker in a situation of temporary disability.
But, as has happened with LO 10/2022, Law 15/2022 establishes some obligations, and most importantly, some legal-economic consequences for companies, which go beyond the declaration of nullity of the dismissal of a worker on temporary disability.
Thus, Law 15/2022 in its article 25.1, establishes the obligation for all companies -regardless of the number of workers that make up their workforce- to establish sufficient methods or instruments of protection against discrimination, the adoption of preventive measures, and the articulation of adequate measures for the cessation of discriminatory situations.
Protocol on non-discrimination
It is important to highlight that Law 15/2022 extends its subjective scope to nationality, age, prior acquisition or not of legal residence, race or ethnic origin, sex, religion, conviction, or opinion, age, disability, orientation or sexual identity, gender expression, disease or health condition, serological status and/or genetic predisposition to suffer pathologies and disorders, language, socioeconomic situation, or any other personal or social condition or circumstance. That is why the obligation to also establish the "Protocol on non-discrimination".
A very important aspect of Law 15/2022, and which affects both the Non-Discrimination Protocol, as well as the Protocol on sexual harassment and the Protocol on psychological harassment, is the legal consequence provided for in article 27.2 in the event that the company fails to comply with the obligation to implement said protocols, such as the establishment of a kind of joint and several liability of employers or providers of goods and services when discrimination, including harassment, occurs in their scope of organization or management.
With all of the above, our advice as labor law is that, given the constant change in labor regulations, it is that they put themselves in the hands of experts in the field, since labor legislation entails many more obligations than can be discussed in an article. like the present. For any question, contact Tomarial and our experts will advise you personally.
Sara Puig
Collaborator Labor Area Tomarial
