October 2024
Yesterday, Royal Decree 1026/2024, dated October 8, was published in the BOE, which develops the planned set of measures for the equality and non-discrimination of LGTBI individuals in companies. This regulation comes into effect today, Thursday, October 10, and imposes an obligation on companies that meet certain quantitative requirements to have a planned set of measures and resources aimed at achieving real and effective equality for LGTBI individuals, which must include a protocol for addressing harassment or violence against LGTBI individuals.
The law establishes a dual obligation in this regard, which the regulation develops, and which essentially translates to the need to:
- Have a planned set of measures and resources to achieve real and effective equality for LGTBI individuals.
- Include among those measures a protocol for addressing harassment or violence against LGTBI individuals, with the nuances that will be outlined now.
The RD 1026/2024 is structured around three chapters, with a total of nine articles, two final provisions, and two annexes.
Chapter I establishes the general provisions of the regulation, determining its object, scope of application, and the way in which the quantification of the number of employees of the company must be carried out.
Chapter II sets out the essential elements of the negotiation of the planned measures: the instrument in which they will be included – which will differ depending on both the existence or not of an applicable collective agreement and its scope – the deadline for conducting the negotiation or determining the measures, and the negotiating procedure.
Chapter III develops the content of the planned measures, highlighting, firstly, their necessary transversal nature.
Subsequently, their structure and content within collective agreements or company agreements are established. It also clarifies their period of validity, as well as their mechanisms for monitoring, evaluation, and revision.
The first and second final provisions respectively outline the competences and the entry into force.
Finally, the annexes include the planned measures that must be contemplated at a minimum and the structure and content of the protocol in situations of harassment due to sexual orientation, identity, and gender expression.
The questions it raises are several. Let’s take a closer look at this by differentiating between the following points:
1.- Obligated companies and scope of application
The companies required to comply with this dual obligation are those that have more than 50 employees. It should be noted that the Equality Plan is applicable starting from 50 employees or more, but according to the literal interpretation of Law 4/2023, LGTBI, and this Royal Decree, which essentially develops its article 15.1, companies with exactly 50 employees are not obliged to implement these measures; only those exceeding the threshold of more than 50 employees are.
The aforementioned companies are required to have what the Royal Decree refers to as planned in the terms that will be stated. They must agree on them in a company agreement, in a company collective agreement, or in a supra-company collective agreement in the terms that will be explained later.
The content of what is agreed as planned measures will also apply to workers assigned by temporary work companies during the periods of service provision (fourth paragraph of article 11.1 of Law 14/1994, of June 1, which regulates temporary work companies).
The action protocol against harassment and violence towards LGTBI individuals has a broader scope of application. In fact, we are told that it will apply not only to workers provided by temporary employment agencies but also to all individuals working in the company, regardless of the legal link that ties them to it, as long as they carry out their activity within the organizational framework of the company. It will also apply to those applying for a job, the staff made available, suppliers, customers, and visitors, among others.
Companies that do not reach the legal threshold of more than fifty employees may also voluntarily adopt both the measures and the protocol.
2.- Companies and not corporate groups
The obligation to implement these measures is set at the company level, without any regulations providing for their implementation at the group level.
3.- Counting of workers
Article 3 of Royal Decree 1026/2024 establishes the specific way of counting workers for these purposes. Thus, on one hand, it is stated that all workers will be considered as one for these purposes, including those linked by fixed discontinuous or part-time contracts, temporary contracts, and people hired to be made available (by a temporary employment agency).
Following the previous statement, RD 1026/2024 clarifies regarding temporary workers, regardless of their modality, that have been in effect in the company during the six months prior and have ended at the time of making the calculation. In this case, every one hundred days worked or fraction will be counted as an additional worker.
4.- The last day of June and December determines the count of workers
The count of workers in the aforementioned terms will be carried out on the last day of June and September each year. As long as they do not implement it, of course. Because as soon as the commission is established in the terms that will be stated, even if the number of workers is modified later and does not reach the threshold of more than fifty workers, negotiations must continue and the measures foreseen must be applied.
