17 December is the deadline for EU countries to transpose into national legislation the EU Directive 1937/2019 which obliges companies to have a protocol for reporting irregular practices.
The deadline for Spain to adapt the EU Directive requiring companies with more than 49 employees to have a protocol for reporting irregular practices is 17 December.
However, for companies with between 50 and 249 employees, the deadline for implementation is extended to 17 December 2023. These procedures should allow whistleblowing in a simpler, more regulated and direct way by the employees of a company without being able to be sanctioned for doing so.
Any sanction against those who exercise this right constitutes a reprisal and a violation of fundamental rights, and therefore the company cannot require its employees to silence practices that are contrary, whatever their nature, to the legal system. Whistleblowing procedures should include:
- The channels for making and receiving complaints.
- Clear and easily accessible information on procedures.
- The guarantee of confidentiality of the whistleblower’s identity and the prevention of access by unauthorised personnel.
- Designation of the person or department responsible for handling complaints.
- A reasonable period of time (no more than 3 months after the complaint) for the processing and communication to the complainant of the processes and progress made.
It should be recalled that protocols on moral, sexual and gender-based harassment should already regulate the submission and processing of complaints in these matters. In this regard, article 48 of Organic Law 3/2007 includes specific measures to prevent sexual harassment and harassment on grounds of sex at work:
- Companies should promote working conditions that prevent sexual harassment and harassment based on sex and establish specific procedures for its prevention and for dealing with complaints or claims that may be made by those who have been subjected to it.
To this end, measures may be established that must be negotiated with workers’ representatives, such as the drafting and dissemination of codes of good practice, the implementation of information campaigns or training actions.
- Workers’ representatives shall contribute to the prevention of sexual harassment and harassment based on sex at work by raising workers’ awareness of such harassment and by informing company management of any conduct or behaviour of which they are aware and which may be conducive to it.
It should be remembered that, as of 7 March 2022, companies with 50 or more employees must have an equality plan, but it should be noted that those that do not reach this size are not exempted from adopting measures to guarantee effective equality between men and women in the workplace.
Consequently, the law also obliges companies, regardless of the size of their workforce, to set up specific procedures for the prevention of sexual harassment and harassment based on sex, as well as to deal with any complaints or claims that may be made by those who have been subjected to this type of harassment.
In order to comply with this obligation, a harassment protocol must be drawn up, defining who the victims should contact to activate the protocol, who can be the instructor, what steps must be taken, etc. Once the protocol has been drawn up, if a worker reports that he or she is a victim of harassment, it must be activated immediately and an instructor must be appointed to take the appropriate action.
If the investigation concludes that there has been harassment, a disciplinary file must be opened against the harasser with the consequent graduation and proportionality of the offence committed. Otherwise, the file must be archived together with the documentation collected.
Finally, it should be remembered that failure to draw up a sexual harassment protocol constitutes a serious administrative offence, punishable by a fine of between 751 and 7,500 euros.
The AddVANTE Labour Management Department remains at your disposal for further information or to resolve any queries that may arise in connection with this article.