Novelties introduced by the law on the comprehensive guarantee of sexal freedom in the field of employment

Novelties introduced by the law on the comprehensive guarantee of sexal freedom in the field of employment

On 7 October 2022, Organic Law 10/2022, of 6 September, on the comprehensive guarantee of sexual freedom, came into force. Its main purpose is to promote the prevention of sexual violence and to guarantee the rights of all victims. In order to ensure such prevention, an effective response in favour of the victims, as well as sanctions that are proportional to the conduct in question, central importance has been given to the implementation of comprehensive and interdisciplinary measures of specialised and coordinated institutional and professional action.

In this sense, we find a Law that addresses those areas or environments in which sexual freedom may be transgressed, such as education, health and social-health, digital and communication, advertising, public administration and employment. 

Specifically, in this entry we will explain the new features introduced by the Law on the Comprehensive Guarantee of Sexual Freedom in the field of employment and its impact on both workers and companies.

ARTICLE 12. PREVENTION AND AWARENESS-RAISING IN THE LABOUR FIELD

It is therefore important to begin by citing Article 12, which, under the nomenclature of “Prevention and awareness-raising in the workplace“, establishes the obligation of companies to promote working conditions that prevent the commission of crimes and other conducts against sexual freedom and moral integrity at work. To this end, a series of measures or actions have been determined in this respect, which are listed below:

• Companies must set up specific procedures for the intended prevention and must in turn provide a channel for any complaints or claims that may be made by those who have been victims of such conduct. 

• The possibility is allowed for the company to negotiate with the legal representatives of the workers, measures such as the elaboration and dissemination of codes of good practice, information campaigns, action protocols or training actions. 

In relation to these measures, it should be noted that the legislator intends to extend their application to all employees, regardless of their type of contract. In other words, workers who provide services on an indefinite-term basis, whether they do so through secondment contracts or students on scholarships, will benefit from these measures:

• Another important aspect is that companies will have the duty to promote awareness, for which they will offer training for comprehensive protection against sexual violence to all their staff. 

• In terms of occupational risk prevention, the obligation is also imposed to include sexual violence among the concurrent occupational risks in the risk assessment of the different jobs occupied by female workers, and they must train and inform their workers about it. 

• Likewise, companies will integrate the gender perspective in the organisation of the spaces in their workplaces so that they are safe and accessible for all female workers.

Another of the issues to be assessed by the legislator has been to introduce the possibility of granting recognition to those companies that adapt their structure and operating rules to the provisions established in this Organic Law, through the awarding of a “Companies for a society free of gender-based violence” badge. 

ARTICLE 36. LABOUR AND SOCIAL SECURITY RIGHTS

Other important aspects to take into account are the employment and social security rights that are recognised for victims of sexual violence, in relation to what is already provided for in this respect in the Workers’ Statute. By way of summary, they will have the right to:

• The reduction or reorganisation of their working time, geographical mobility, change of work centre, adaptation of their work post and the support they require due to their disability for their reincorporation or the termination of their work contract.

• Likewise, they may suspend their employment relationship with job reservation, although the duration of this may not exceed six months, which may be extended in certain cases for periods of three months up to a maximum of eighteen months. 

• Unemployment protection, and it is also important to take into account the inclusion of a specific action programme for victims of sexual violence registered as job seekers, which will include measures aimed at favouring the start of a new self-employed activity or the right, at the time of applying for a job, to participate in the legally established economic aid or to participate in specific job insertion programmes.  

• For disciplinary purposes, it is established that absences or lack of punctuality to work due to the physical or psychological situation derived from sexual violence will be considered justified and will be remunerated when so determined by the social care services or health services, as appropriate, without prejudice to the fact that such absences must be reported by the worker to the company as soon as possible.

For their part, companies may also benefit from a 100% discount on employer’s social security contributions for common contingencies when they enter into interim contracts with an unemployed person to replace female workers who are victims of sexual violence and who have suspended their employment contract or exercised their right to geographical mobility or change of work center.

CRIMINAL LIABILITY OF COMPANIES AND THEIR COMPLIANCE. 

Last but not least, special mention should be made of the criminal liability that can be attributed to companies in the event that it is concluded that a company failed to put in place the necessary means to prevent a situation of sexual harassment in its environment.

All the amendments to which this Law devotes its fourth final provision are aimed at extending the catalogue of offences for which legal persons could be criminally liable. Thus, for example, it redrafts the crime against moral integrity (Article 173.1 of the Criminal Code), the crime of sexual harassment (Article 184 CP) or the crime of disclosure of secrets (Article 197 CP), when they take place in the workplace and imposing penalties for those legal persons who could be responsible for committing them.  

This will oblige all companies that have implemented a compliance system to keep it constantly updated, or to carry out new risk analyses that will enable them to determine the possible commission of this type of crime within the framework of their internal organisation or structure.  In conclusion, now more than ever, it is essential for companies to implement adequate policies for the detection and eradication of crimes of this nature, as well as reaction protocols, otherwise they will be exposed to fines that could reach a maximum amount of up to 3,600,000 million euros. 

If you need further advice on this matter, to develop a harassment protocol or any other need arising from the entry into force of this new law, RSM Spain’s Employment Department would be delighted to help you, so please do not hesitate to contact us.