Spain: Approval of the royal decree that develops measures to guarantee equality and non-discrimination of LGTBI people in companies

Spain - 10 / 09 / 2024

The approved regulation protects the rights of LGTBI people, developing Law 4/2023 whose aim is to guarantee their rights by eradicating situations of discrimination against diversity, and includes the content of the measures of action and protocols against harassment.

Royal Decree 1026/2024, of 9 October, which develops a planned set of mandatory measures to ensure equality and non-discrimination of LGTBI people in the workplace, has been published in the Official State Gazette.

The royal decree, which comes into force on 10 October, makes it compulsory for companies with more than fifty workers to implement planned measures and a protocol against harassment and violence, identifying preventive practices and mechanisms for detecting and acting against it.

Among the minimum contents of the planned measures (Annex I of the regulation) are equal treatment and non-discrimination clauses, measures in access to employment, criteria for classification, professional promotion and promotions that do not entail discrimination, training, awareness and language measures, access to leave, social benefits and rights without discrimination, and diverse, safe and inclusive work environments.

Annex II of the regulation contemplates the content of the protocols for action against harassment and violence against LGTBI persons. These protocols must determine the procedure for the presentation of the report or complaint, as well as the maximum period for its resolution, without prejudice to the application of the provisions set out in Law 2/2023, of 20 February, regulating the protection of persons who report regulatory infringements and the fight against corruption, in their respective personal and material scope. The obligation to implement a protocol may be understood to be fulfilled when the company has a general protocol against harassment and violence that includes measures for LGTBI people or specifically extends it to include them.

The duty to negotiate planned measures will be articulated through collective bargaining as follows:

In company-level collective agreements and collective agreements above company level, the planned measures will be negotiated within the framework of each agreement.
With respect to collective agreements signed prior to the entry into force of this Royal Decree, the negotiating committee shall meet to deal exclusively with the negotiation of the planned measures set out in Annex I, within the deadlines established in the regulation.
In the absence of an applicable collective agreement, companies with employee representation will negotiate the planned measures by means of company agreements.
In companies that do not have an applicable collective bargaining agreement and do not have employee representation, negotiations shall be held with employee representation comprising the most representative trade unions and the trade unions that are representative in the sector. The social part of the negotiating committee shall be made up of those trade union organisations that respond to the company's call within ten working days, which may be extended by a further ten working days if none respond within the first period. If no response is received within this new period, the company may proceed unilaterally to determine the planned measures.

Regarding negotiation deadlines:

Companies obliged to negotiate the planned measures that regulate their working conditions through collective bargaining agreements or company agreements, as well as those companies that do not have an applicable collective bargaining agreement and have workers' representation, must initiate the procedure for negotiating the planned measures by setting up the negotiating committee within a maximum period of three months following the entry into force of the regulation.
In companies which, having the obligation to negotiate planned measures, do not have an applicable collective bargaining agreement and lack worker representation, the maximum period for setting up the negotiating committee shall be six months from the entry into force of this Royal Decree.

Three months after the start of the procedure for negotiating the planned measures without an agreement having been reached, or in the event that the applicable collective agreement does not include them, companies will apply the measures established in the regulation until those that may subsequently be agreed by collective agreements or company agreements come into force.