Obligation to implement a protocol against harassment or violence against LGTBI people in Spain
Published on 28th Feb 2024
Starting from 2 March 2024, companies with more than 50 employees will be required to have a protocol in place to guarantee and promote the right to real and effective equality of LGTBI people in the workplace
Understanding Law 4/2023
Law 4/2023 of 28 February (BOE of 1 March) aims to ensure equal rights and opportunities for LGTBI (Lesbian, Gay, Bisexual, Transgender, and Intersex) individuals in Spain. It recognizes the importance of promoting equality and eliminating discrimination based on sexual orientation and gender identity.
Key Highlights of the Law 4/2023
As of 2 March 2024, companies with more than 50 employees must implement a "planned set of measures and resources to achieve real and effective equality of LGTBI people, including a protocol against harassment or violence against LGTBI people".
Specifically, Article 15 of Law 4/2023 establishes that "the content and scope of these measures shall be developed by regulation". Since this regulatory development has not been provided by the Spanish Government, it can be argued that, as long as such regulatory development does not take place and the content and scope of the measures to be implemented are not specified, companies cannot fully comply with an obligation whose specific content and scope are unknown.
However, on the other hand, it is not clear that Law 4/2023 conditions the enforceability of the obligation to implement such protocol to the existence of the aforementioned regulatory development.
Therefore, and given that it is not clear that only the regulatory development makes the legal mandate contained in Article 15 of Law 4/2023 enforceable, both the Labor Inspectorate and the Labor Courts may consider that the obligation to implement the protocol against harassment or violence against LGTBI persons is fully enforceable as of 2 March 2024 and regardless of the fact that the regulatory development has not taken place.
Consequences of Non-Compliance
Failure to comply with the obligations set forth in Law 4/2023 may result in the imposition of financial fines on companies for serious labor violations, in addition to potential legal actions by those affected and the negative publicity that may affect the Company.
How Osborne Clarke Can Assist You
At Osborne Clarke, we understand the importance of promoting equality and ensuring a diverse and inclusive workplace. Our team can advise you on the drafting and implementation of the necessary protocol to comply with the obligations of Law 4/2023.
