The regulations have not yet been published so that companies with more than 50 employees can make their LGTBI Plan
On March 2, the deadline for the companies with more than fifty employees put into operation the action protocols to achieve real and effective equality for LGTBI people. This is stated in the law, published in the BOE on February 28, 2023, and which came into force on March 2 of the same year. This law, in the third section, article 15, states the following:
«Companies with more than fifty workers must have, within twelve months from the entry into force of this law, a planned set of measures and resources to achieve real and effective equality for LGTBI people, that includes an action protocol to address harassment or violence against LGTBI people. To this end, the measures will be agreed upon through collective bargaining and agreed with the legal representation of the workers. The content and scope of these measures will be developed according to regulations.
— Law 4/2023, of February 28, for the real and effective equality of trans people and for the guarantee of the rights of LGTBI people
Waiting for the Regulation
However, this law also indicates that these measures will be developed through a regulation that has not yet been made public. As explained by the General Director for Real and Effective Equality of LGTBIQ+ people July of the Iscar Valley: «The deadline is extended so that companies with more than fifty workers adopt measures and resources to achieve real and effective equality for LGTBI people»
DGPPLGBTI+ of the Generalitat of Catalonia has issued a statement to respond to companies' queries
The General Directorate of LGBTI+ Public Policies of the Generalitat of Catalonia, directed by Xavier Florensa Cantons, has issued the following statement:
Recently, many companies and local entities have contacted this Administration to obtain information regarding the possible interpretation of article 15 of Law 4/2023, of February 28, for the real and effective equality of trans people and for the guarantee of the rights of LGTBI people (hereinafter, Trans-State Law), which regulates the obligation of companies with more than 50 workers to have a planned set of measures and resources to achieve real and effective for LGTBI people, before March 2, 2024.
On the other hand, and taking into account that the regulation that has to deploy the content and scope of this planned set of measures has not yet been approved, they wonder if, in accordance with the new trans-state Law, the fact of not having of these measures, within the stipulated period, constitutes an administrative infraction with the consequent sanction." Full Text
The final conclusions of the statement are the following:
a) It is recommended that companies, regardless of the number of personnel:
– Have sufficient methods or instruments for the prevention and detection of discriminatory situations due to sexual orientation, gender identity, gender expression and various sexual characteristics in the workplace, negotiated with staff representation.
– Implement measures to prevent and, if appropriate, cease possible discrimination or harassment based on sexual orientation, gender identity, gender expression and various sexual characteristics within the company.
Among other measures, a protocol could be implemented with the procedure to follow and the reference people or company units that can accompany and repair possible victims of discrimination or harassment, and urge the investigation of the case and adopt the appropriate resolutions in relationship with offenders. The protocol would have to be accompanied by a good communication and dissemination plan, as well as mechanisms that allow monitoring and checking effectiveness.
– Negotiate and agree on measures with staff representation, to integrate them as tools that provide solutions to possible discrimination or harassment based on sexual orientation, gender identity, gender expression and diverse sexual characteristics within the company.
– Raise awareness and train all staff in the LGBTI field, regardless of position and responsibility, and integrate the values of equal treatment and non-discrimination into corporate policy, expressing the company's commitment to LGBTI people.
– Include elements of inclusive language in all communications and company documentation.
There is no regulation that specifies how the format that groups these measures or their content must be, therefore, it can be done in the way that the company considers most appropriate, in accordance with the representation of the staff in the event that the company has, to make it a reality and until the regulation that deploys article 15 is approved.
It must be made clear that the new trans-state Law modifies Law 9/2017, of November 8, on Public Sector Contracts, with the objective of including in the specifications of particular administrative clauses special execution conditions or award criteria aimed at the promotion of equal treatment and non-discrimination for reasons of sexual orientation, sexual identity, gender expression and sexual characteristics, whenever there is a connection with the object of the contract.
The Administration of the Generalitat and some local entities have already begun to incorporate these criteria. That is why it is important that the company proves that it has these measures if it wants to carry out contracts with public administrations.
b) Regarding the planned set of measures and resources regulated by article 15 of the Transstate Law, until the regulation that regulates the contents and scope is approved, it is difficult for it to be enforceable. Once this regulation is approved, companies (public or private) with more than 50 workers will have to adapt, modify and complement the one deployed based on point a) above, in accordance with what the new regulations specify.
Therefore, we will have to wait for the regulatory rollout to know exactly how the planned set of measures and resources has to be implemented, as well as its content and scope.
In any case, it is recommended that the company sign a declaration of wills document merely formal, with the commitment to carry out what regulates article 15, once the regulation is approved.
c) It must be remembered that neither the Trans-State Law nor Law 11/2014 regulate any specific infraction for not implementing measures such as those mentioned in this information note. Even so, the company, regardless of the number of personnel, could commit a very serious infraction in accordance with section 13 bis of article 8 of the LISOS if it does not have measures to prevent harassment based on sexual orientation, gender identity, gender expression. or diverse sexual characteristics in the workplace.
The LGTBI policy secretariat of Comisiones Obreras Castilla-La Mancha
Rosario Martinez, secretary of women and politics LGTBI of Castilla-La Mancha Workers' Commissions notes that "Since the regulations are not there, we do not know exactly what criteria these protocols or measures must have, so there is a little confusion when it comes to this negotiation.«.
Therefore, until there is a regulation that establishes the bases on which they must be and the criteria that must determine these protocols, the union points out that they will not know what exactly to adjust to. Furthermore, since Workers Commissions They point out that these protocols should be included in the collective agreement and that it should be left margin for companies and unions to negotiate these sections.
As the standard is written, it will be necessary to create a plan LGTBI specific and, therefore, it must be different from Equality Plan. It is important to understand that Law 4/2023 indicates that the LGTBI Plan It must be agreed upon through collective bargaining and agreed with the representation of the workers. This eliminates the possibility of the company unilaterally approving the Plan.
