Monday, 03 October 2022

Labour novelties of Organic Law 10/2022 on the Comprehensive Guarantee of Sexual Freedom in Spain

VolverIn the first place, and over and above the new rights and obligations of the Law, we must bear in mind that it applies to women and children who have been victims of sexual violence in Spain, regardless of their nationality and administrative situation; or abroad, provided that they are of Spanish nationality. It will then also apply to teleworkers and employees posted abroad and, in certain cases, to expatriate national employees. At company level, the measures contained in Article 12 and following will also apply to trainees and volunteers.

As far as the company environment is concerned, this law will prosecute the commission of any non-consensual act of a sexual nature or that conditions the free development of sexual life in any public or private environment, including the digital environment, harassment with sexual connotations and special attention is paid to sexual violence committed in the digital environment, -the dissemination of acts of sexual violence, non-consensual pornography, and sexual extortion through technological means-.

At Belzuz Abogados, lawyers experts in advising companies on labour matters, we can already identify that the following should be updated: 1) the evaluation of occupational risks, 2) the equality plan, 3) the IT and computer systems policy, 4) the digital disconnection policy, among others and with greater urgency:

I. The protocol for the prevention and management of workplace harassment. This is essential in order to fulfil the mandate to establish specific procedures for its prevention and to channel complaints or claims that may be made by those who have been victims of such conduct, including specifically those suffered in the digital sphere.

II. In the area of training. This law has a direct impact on the training approach of the company, as they will promote awareness and offer training for comprehensive protection against sexual violence to all personnel in their service. They are also obliged to promote working conditions that prevent the commission of crimes and other conduct against sexual freedom and moral integrity at work, with special emphasis on sexual harassment and harassment based on sex.

In addition to the possibility of implementing other measures, negotiated with the legal representation of workers, such as the drafting and dissemination of codes of good practice, information campaigns, action protocols or training actions.

III. Occupational Risk Prevention and Risk Assessment. Companies must include sexual violence among the concurrent occupational risks in the risk assessment of the different jobs occupied by workers, and must train and inform their workers about it.

A new label has been created for companies, the "Companies for a society free of gender-based violence", which is still pending regulation on requirements and how to obtain it.

Labour rights. Art. 38 of the Law.

In addition to the obligations for the company, the Law grants a series of rights to female workers who are victims of sexual violence. These rights are briefly listed below:

- Reduction and reorganisation rights: The right to a reduction or reorganisation of their working time, to geographical mobility, to a change of work centre, to the adaptation of their work post and to the support they require due to their disability for their reincorporation, to the suspension of the employment relationship with reservation of their work post and to the termination of the employment contract.

- Right to a suspension of employment: The period of suspension will have an initial duration that may not exceed six months, unless the judicial protection proceedings show that the effectiveness of the victim's right to protection requires the continuity of the suspension. In this case, the judge may extend the suspension for periods of three months, with a maximum of eighteen months.

When the reincorporation takes place, this will be carried out under the same conditions existing at the time of the suspension of the employment contract, guaranteeing the reasonable adjustments that may be required due to disability.

- Unemployment: Victims of sexual violence will be entitled to unemployment protection under the terms provided for in the revised text.

Right extrapolated to self-employed workers who cease their activity in order to make their protection or their right to comprehensive social assistance effective, they will be considered to be in a situation of temporary cessation of activity and their obligation to contribute will be suspended for a period of six months, which will be considered as a period of effective contribution for the purposes of Social Security benefits. Likewise, their situation shall be considered to be assimilated to that of a registered worker.

- Rights regarding non-attendance at work. Absences or lack of punctuality to work due to the physical or psychological situation derived from sexual violence shall be considered justified and shall be remunerated when so determined by the social care services or health services, as appropriate, without prejudice to the fact that said absences shall be communicated by the worker to the company as soon as possible.

Allowances for the company in interim contracts. When they are formalised with an unemployed person, to replace female workers who are victims of sexual violence with a suspended contract, exercise of the right to geographical mobility or change of centre. 100% rebate of the contributions for common contingencies during the entire suspension or six months in geographical mobility or change of centre.

At Labour Law department of Belzuz Abogados, S.L.P., as expert labour attorneys with extensive experience in advising and negotiating on Equality and Harassment in the workplace, we call on companies to accelerate their processes of updating their internal regulations to the contents of this Law, as in the coming months any company may receive complaints or petitions for this reason and it is crucial that the Management has already foreseen, negotiated and regulated it.

Francisco Javier Rodriguez  Francisco Javier Rodriguez

Labor Law department | Madrid (Spain)

 

Belzuz Abogados SLP

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