Equality Plan

The need to establish a fair and equitable working environment for all has promoted the creation and strengthening of the rules that seek to eliminate discrimination and promote equal opportunities in the workplace.

The aims of the plan are:

• Establish effective measures for eliminate any retributive, direct or indirectly gender discrimination.
• The possibility of adopting measures for positive action for the disadvantages that faced by certain groups in employment access.
• The measures must be reasonable provided regarding the objective pursued in each case.

Who can implement the Equality Plan?

1. Mandatory, if only one of the following conditions is fulfilled:

• • Since March 2022, companies with more than 50 employees are obligated to have an Equality Plan.
  • Implementation has been approved in the labour agreement.

Following the Article 42 of Real Legislative Decree 1/2013 it is mandatory that 2% of your workforce is staff with a disability recognised by the public administration.

Two possible exceptions :

1. When the non-incorporation of a disabled employee is due to the non-existence of job seekers with disabilities registered in the indicated occupation or, even if they exist, when they prove that they are not interested in the employment conditions offered in the said offer. The public employment services declare the existence of such a vacancy.
2. When ETOP issues exist, accredited by the company that motivate the special difficulty for incorporate the employees.  In this case, the public employment services resolve about the concurrency of the causes alleged in the application. 

According to the article 15 of Royal Decree 5/200 in the case of non-compliance and failure to recruit at least the mentioned 2% (employees with disabilities), this can lead to serious infringement for the employer. Also, this could imply accessory sanctions such as the loss of aid derived from employment programmes. 

The sanctions for breach these conditions can lead to the prohibition of contact with the public administration regulated in law 9/2017 of November 8th.

2. Volunteers, the rest of the companies can adopt by a voluntary way, the equality plan in order to have the same procedure and including the minimum content provided by the regulation.

General rule:

For the creation of an equality plan is it necessary the participation of the employees´ representatives. This representation qualifies people recognized in terms of legislation:

1. Employees representatives, chosen by the company employees in accordance with the legislation or collective agreements.
2. Trade union representatives, chosen by the trade union and its members.

If these representatives don’t exist, the most representative trade union of the sector can participate. 

When a company without any representation communicates the intention of elaborate an equality plan to the most representatives trade union and they do not answer to this requirement, it exists the possibility that the company elaborates and adopts the plan unilaterally by avoiding the requirements mentioned previously It will be understood as provisional. This is what the Supreme Court has declared in its recent judgment of April 11th 2024 considering that they are on an exceptional deadlock case for the absence of the workers representative bodies.

Equality Plan minimum content

Employment access, with an equative recruitment process, ensure the inclusive language in job offers, and the equality presence of men and woman in all the positions and functions.

On the labour conditions, to guarantee the equality principle and the transparency retributive, to avoid the discriminatory treatments and the gender inequalities. Professional promotions by promotion proceedings merit-based only.

Training, in the equality job opportunities, providing information and sensibility about the importance of complying with equality policy of the company.

The organization of working time, promote and impulse the responsibility and facilitate the conciliation of work, familiar and personal life by an equative way between women and men promoting a company culture that positive values the well-being of employees, the conciliation and the responsibility.

Procedure

1. Creation: communication and opening of the bargaining and the negotiation commission set up.
2. Diagnostic: recompilation and analysis of the quantitative and qualitative dates to know the grade of equality integration between women and men of the company.
3. Register: set objectives, application calendar and approval.
4. Implementation: verification of the development grade, the enforcement measures and the results evaluation.
5. Evaluation (duration/ renovation): achievement of the objectives, results and impact that the companies have had will be evaluated.

Register and inscription

The plan record must be registered on the labour collective agreements and equative plans (REGCON) and approved by the labour authority. 

According to the judgment of April 11th 2024, the equality plan will be approved operating the positive silence when the Administration has not resolved in 3 months.

The Royal Decree 901/2020 establishes that the plan should have the maximum value of 4 years, for facilitate a correct evaluation and follow-up.

Are there any sanctions for non-compliance with the Equality Plan?

The non-implementation and non-compliance of the equality obligations established in the Worker Statue of in the collective agreement can lead to economic sanctions that will be graduated according to intentionally, non-complying warnings and the requirements of the inspection or other circumstances that can failure to comply with prior warnings and that can aggravate the graduation to applicate to the infringement committed.

In legal practice we can see with the judgment of November 17th 2023, that, not implementing the Equality Plan, can be considered a very serious infraction and carry a sanction between 25.000 to 100.005 Euro. In this case were 73.000 Euro since the company did not comply with the obligation to negotiate in good faith the development of the Equality Plan.

Equality Plan LGBTI

Law 4/2023, February 28

The purpose of this law is guarantee and promote the right to real and effective equality of LGBTI community. 

Specifically, article 15 defends that it is mandatory for companies with more than 50 employees to develop an equality plan that must include measures and resources to achieve real and effective equality of the LGBTI community, as well as specific protocols to prevent and address situations of harassment or violence against this community.

Key highlights of the plan

• Since March 2^nd 2024, the obligation come into effective force for all companies with more than 50 employees.
• It is essential the commitment of the organisation. The plan must be agreed with employees’ representatives or the most representatives trade union if there is no representation in the company.
• Include a planned set of measures and resources for achieving real and effective equality to LGBTI community.
• The content will be developed by regulation.

EQUALITY PLAN LGBTI must be comprehensive, cover multiple areas of actions within the company and be designed to promote equality and non-discrimination.

What specific measures should guarantee equal employment opportunities for LGBTI community?

Companies must have specific and planned set of measures and resources to achieve real and effective equality of LGBTI community.

This means that there should be an action protocol to avoid harassment or violence against these people, as well, as the personal sensitization about LGBTI issues.

These measures must be agreed through collective bargaining.

Action protocol against harassment of LGBTI community

The main purpose of developing a protocol is to articulate the specific and essentials measures to prevent and deal with any discriminatory behaviour.

The protocol is applicable to the whole company, regardless of the number of workplaces or the professional category of the employees.

The period of validity of the Protocol, as well as the deadlines for its revision will be determined in the equality plan in accordance with Royal Decree 901/2020.

It is recommended that all companies establish an action protocol against harassment of LGBTI community to avoid behaviour that may be adverse to sexual freedom and moral integrity.

What are the consequences of non-compliance?

As mentioned before, having an equality plan could imply multiple benefits for companies and one of them would be to avoid possible complaints or sanctions that may arise in the future.

Failure to comply with the obligations set forth in Law 4/2023 may result eventual sanctions of up to 15.000 Euro on companies for serious labour violations, in addition to potential legal actions by those affected and the reputational cost for the company.

Benefits  

The implementation of an Equality Plan will be helpful with the obligation of  companies with more than 50 employees and as well as that company that is not required to implement.

Companies can achieve the following benefits:

• Avoidance of sanctions by the labour inspection.
• Create an equitable and respectful work environment.
• Improve the company reputation and obtain competitive advantages.
• Facilitates access to grants and public aids.

Zafo Law can provide legal advice in the promotion an implementation of the Protocols with specific measures that can prevent complaints or claims related to harassment or moral integrity at workplace. 

For that reason, in order to obtain and effective protection against situations of complaints for moral damages in the workplace, it is essential to implement and Equality Plan that includes specific actions and measures for equal treatment and opportunities for LGBTI community.

At Zafo Law we understand the importance of promoting equality and ensuring a diverse and inclusive workplace. Also, could effort legal advice about Equality Plan and LGBTI plan. The proves will imply elaborates, setting up, monitoring and updates the plan.