In the week in which International LGTBI Pride Day is celebrated (June 28), we refresh the obligations of companies in relation to equality and non-discrimination of LGTBI people.
More than two years have passed since Law 4/2023 created the obligation for companies with more than 50 employees to have a planned set of measures and resources to achieve real and effective equality for LGBTI people, but it was not until October 2024 that this obligation was developed and specified through its regulation.
According to this regulation, the obligation to establish the planned set of measures in this area falls on collective bargaining in the following way: in those companies that apply a collective bargaining agreement of a higher scope than the company, it will be in this framework that the planned set of measures must be negotiated; in companies that have a company collective bargaining agreement, they will be negotiated within this framework; and those companies with no applicable collective agreement —which is not very common— they have to negotiate the planned measures through company agreements.
The regulation fixed deadlines for negotiators to approve the set of measures.
The deadline fixed for companies to set up the negotiating committee is three months from the entry into force of the regulation (except in the case of companies without an applicable collective agreement and without workers’ representatives, which is six months), i.e. no later than January 10, 2025, negotiations to reach these agreements should have begun.
The regulation also states that, after three months have elapsed since the start of the negotiation procedure without an agreement having been reached (at the latest, by April 10, 2025, if negotiations began on 10 January) or in the event that the applicable collective agreement does not include the planned measures, companies will apply the set of measures contained in Annex I of the regulation.
What happens if, after those months, no concrete measures have been agreed?
- If a company —with or without its own collective agreement— began negotiations on January 10, and, after three months, has not reached an agreement, from 10 April it had to apply the measures in the cited annex.
- In the case of a company with a higher-level collective agreement, the regulation establishes the same period of three months for the negotiating committee to address the negotiation of the measures, which had to be agreed within three months of the start of the negotiations.
Although the regulation does not expressly establish the consequence of not reaching an agreement within that period, it alludes to the fact that if the collective agreement does not include the planned measures, the company must also apply the measures in the referred annex, until those that may be agreed in that agreement come into force.
On the other hand, the regulation does not establish any deadline for those sectors that were negotiating the collective agreement upon its entry into force, but it can be understood that the case falls within the generic one indicated in the previous paragraph that the agreement does not include the planned measures.
In short, depending on the corresponding bargaining scenario, today companies with more than 50 employees should either have agreed on the set of measures planned within the framework of their own agreement or by company agreement, or be applying those regulated in the agreement at a higher-level than the company agreement, if they have already been regulated, or, in the absence of all of the above, those contained in Annex I of the regulations. Analyzing the specific case in which the company finds itself is of utmost importance to comply with its obligations in LGBTI matters.
