Mandatory workplace harassment protocol: how do you prepare one?

The Ministry of Equality has decided that all businesses, regardless of their number of employees, are required to draw up a protocol for the prevention of, and response to, sexual harassment. Otherwise, the self-employed worker could face heavy penalties.

Having a workplace harassment protocol is mandatory for all businesses with employees, regardless of the number of workers or the size of the company. This protocol, introduced by the Ministry of Equality, must set out both the measures to prevent harassment and the measures and procedures to be followed if harassment occurs in the workplace.

What is the harassment protocol and to whom does it apply?

The workplace harassment protocol is a plan against workplace harassment that sets out the measures needed to prevent, avoid, or eliminate any form of workplace harassment in the company, whether harassment on grounds of sex (acoso por razón de sexo), sexual harassment, or psychological harassment. Its aim, therefore, is to eradicate harmful behavior that damages both the workers who suffer it and the company itself, which is responsible for the physical and psychological well-being of its employees.

The protocol for the eradication of harassment applies to the company’s entire workforce, regardless of the number of workplaces, the professional category of the workers, the manner and place in which services are provided, and the type of employment contract. In other words, it covers all employees, even those on permanent intermittent contracts (contratos fijos discontinuos), fixed-term contracts, or contracts for the provision of workers through temporary employment agencies (contratos de puesta a disposición). It also applies to all persons who, although they have no employment relationship, provide a service to or collaborate with the business (training, internships, or volunteering).

In addition to drawing up the protocol, the business or company must monitor everything that may happen within its workforce with regard to harassment, bearing in mind that the protocol will apply not only during working hours but also in all situations that are related to work or that arise as a result of it. The protocol will apply in the following situations:

• At the workplace, in both public and private spaces

• In places where the worker is paid, rest or meal areas, sanitary or washroom facilities, and changing rooms

• During work-related travel, trips, events, or activities

• In the context of work-related communications, including those made through technology (online harassment or cyberbullying)

• In accommodation provided by the employer

• During commutes between the employee’s home and the workplace

What obligations apply?

By adopting the protocol for the prevention of, and response to, harassment, the self-employed worker and his or her business or company “declare their zero tolerance of any conduct constituting bullying or harassment on grounds of sex or sexual harassment.” That is, as the Government measure states, the self-employed worker undertakes to adopt a proactive approach to preventing harassment, to disseminate good practices, and to implement all measures necessary for such prevention. Accordingly, in addition to being required to have the protocol in place, the self-employed worker will be obliged to:

• Promote the prevention of sexual harassment and harassment on grounds of sex in all areas of the business

• Declare the zero tolerance of his or her company or business toward harassment

• Facilitate the identification of harassing conduct

• Implement a simple, quick, and accessible procedure for confidential complaints or reports

• Investigate harassment complaints internally, in an agile, prompt, and confidential manner

• Where necessary, discipline the perpetrator of the harassment and compensate the victim

• Support the person who has suffered the harassment

How the harassment protocol is prepared

There are several models of protocol for the prevention of, and response to, harassment. Each business will decide which model to apply according to its characteristics, its size, and whether or not it is also required to draw up an equality plan. In other words, the self-employed worker may use the model that best suits his or her needs.

In any event, to correctly prepare the protocol for the prevention of, and response to, sexual harassment and/or harassment on grounds of sex, the self-employed worker must set out the information in three clearly differentiated and explained parts:

• Preventive measures: first, the self-employed worker must explain in detail the statement of principles and the definition of sexual harassment, and identify all conduct that may constitute harassment.

• Response procedure: second, the procedure for responding to harassment must be explained, in order to facilitate any complaints or reports that may be made by members of the workforce.

• Reactive measures: finally, the self-employed worker will be required to specify all the measures that will be taken in the event of harassment, as well as the consequences and penalties that could be imposed on the employee responsible for the harassment.

To prevent and avoid harassment, the self-employed worker is required to communicate the adoption of the protocol both to his or her employees and to the persons who provide services within the organization. This may be done by email, website, intranet, bulletin board, in writing, or by any other means.

The self-employed worker may face penalties of more than €200,000

If a self-employed worker fails to comply with the obligation to have a protocol on sexual harassment and/or harassment on grounds of sex, he or she may be heavily penalized and taken to court. The amount payable will always depend on the seriousness of the infringement, which may be minor, serious, or very serious.

• Minor infringement: fines ranging from €7,501 to €30,000

• Serious infringement: fines ranging from €30,001 to €120,005

• Very serious infringement: fines ranging from €120,006 to €125,018

What measures must the self-employed worker take if harassment occurs in his or her business?

If a complaint of sexual harassment or harassment on grounds of sex is made, once the corresponding investigation has been carried out, the self-employed worker may adopt any measures he or she considers appropriate, such as:

• Physically separating the perpetrator from the victim through a change of position, shift, or working hours (the victim will never be required to make the change)

• Disciplining the perpetrator by applying the schedule of infringements and penalties set out in the collective bargaining agreement

• Transfer, relocation, or change of position, working hours, or location

• Suspension from work without pay

• Restriction of promotion

• Disciplinary dismissal