Self-employed with workers must have a workplace harassment protocol. This affects all companies or self-employed employers, regardless of the number of workers they have.
Since the entry into force of the Equality Law 3/2007 and its Royal Decree 901/2020, it is mandatory.
Self-employed with workers must have a workplace harassment protocol
Although many Self-employed do not know it, for years they have been obliged to have a protocol against workplace harassment. This plan was established by the Ministry of Equality and must include both the measures for the prevention of harassment and the procedures to be followed in the event of such a situation occurring in the workplace.
This ignorance does not exempt from the obligation, and in case of not having this protocol, they can face important sanctions.
What is considered workplace harassment?
Logically, the first thing to do is to define harassment at work. The regulations define it as any behavior, verbal or physical, of a sexual nature that is unwanted by the person who is the object of such behavior. And has the purpose or has the effect of violating the dignity of a person.
In particular when an intimidating, degrading or offensive environment is created, through inappropriate attitudes, manifestations or comments.
Sexual harassment and harassment based on sex, as well as any unfavorable treatment related to pregnancy, maternity, paternity or assumption of other family care is considered discriminatory and is expressly prohibited by law.
How serious does the legislation consider it to be?
Both the Workers’ Statute, the Basic Statute of the Public Employee and the Law on Infractions and Sanctions of the Social Order consider sexual harassment and harassment based on sex to be very serious offenses. It may be cause for disciplinary dismissal of the harasser and just cause for the victim to request the termination of the employment contract.
Sexual harassment may also constitute a crime under the Penal Code with a prison sentence or fine.
In what situations does it apply?
The protocol will apply not only during the working day, but in all work-related situations:
- In the workplace, both in public and private spaces.
- In rest or meal areas, sanitary or toilet facilities, as well as in the locker rooms.
- During travel, trips, events or work-related activities.
- In the context of work-related communications and cyberbullying.
- In accommodation provided by the employer.
- In commuting between the employee’s home and the workplace.
How to make a protocol against workplace harassment?
All companies, regardless of their size, and for these purposes a Self-employed with employees is considered as such, have the legal obligation to promote working conditions that prevent sexual harassment and harassment based on sex. First of all, we must know the two existing protocol models: The one for prevention and the one for action.
Each business is free to decide which model to apply depending on its characteristics, size and whether it is obliged to have an equality plan or not.
The Ministry of Equality offers all the information and a Guide to know better which one to apply to each business correctly.
In any of the cases, for the correct implementation of the protocol of prevention and action against sexual harassment, the self-employed must develop the information in three parts:
- Preventive measures. The freelancer must explain its statement of principles, the definition of sexual harassment, as well as identify all conduct that may constitute harassment.
- Procedure for action. Explain the procedure for dealing with harassment in order to facilitate complaints or denunciations. Enabling a channel for complaints.
- Reactive measures. Finally, the employee must specify all the measures that will be taken in the event of a harassment situation, as well as the consequences and sanctions that could be imposed. Sanctions ranging from physically separating the aggressor and the victim, to suspension of employment and salary, and may also result in disciplinary dismissal.
Sanctions for not having a workplace harassment protocol in place
The sanctions imposed by the Labor Inspectorate, once it has verified whether or not the companies have such a protocol in accordance with the requirements of the regulations, vary depending on the seriousness of the infraction.
According to the Law on Infringements and Penalties, these would be as follows:
- Fines from €7,501 to €30,000 for minor infractions.
- Fines from €30,001 to €120,005 for serious infringements
- And finally, fines from €120.006 to €225.018 for very serious infringements
But these are only the administrative sanctions. If the seriousness of the case were to go to court, the fines imposed by the court on the company would have to be added, if it is proven that the company did not have the mandatory workplace harassment protocol in place or that the one it had in place was insufficient or inefficient.
As well as the possible compensation for damages that could be claimed by the victim.
