Harassment protocol: obligatory in every company, whatever its size

Contents

• What is the harassment protocol?
• Who does it apply to?
• What does it have to contain?
• What risk do you run if you don't have it?
• How Tranquilia generates it
• Frequently asked questions
• Official sources

What is the harassment protocol?

It is the written procedure that states, in advance, two things: what your company does so that there is no harassment, and what happens if someone reports it. It covers sexual harassment (unwanted conduct of a sexual nature) and harassment on grounds of sex (unfavourable treatment on account of being a man or a woman).

Its value lies in existing before it is needed: when a case arises, nobody wants to improvise who receives the report, how it is investigated and how the affected person is protected.

Who does it apply to?

To every company, with no headcount threshold. Art. 48 of LO 3/2007 requires any company to promote working conditions that prevent sexual harassment and harassment on grounds of sex, and to put in place specific procedures for their prevention and to channel reports.

Take care not to confuse it: the equality plan is only obligatory from 50 workers upwards. The harassment protocol, by contrast, must also be held by companies with fewer than 50, which are the majority. It is a common mistake to think that if you do not reach 50 nothing applies to you: the protocol does.

What does it have to contain?

A useful protocol sets out, as a minimum:

1. A declaration of zero tolerance of harassment.
2. What counts as sexual harassment and harassment on grounds of sex, with examples.
3. How a report is made and to whom.
4. A prompt, confidential and impartial investigation procedure.
5. Protection measures for the affected person and a guarantee of no reprisals.
6. The possible consequences for the person who harasses, connected to the disciplinary rules.

What risk do you run if you don't have it?

As well as leaving your workforce without protection, not having the protocol is an infringement in the social order monitored by the Inspección de Trabajo (Spain's labour inspectorate), and it may be classified as serious or very serious depending on the case. If harassment occurs and your company had done nothing to prevent it and had no channel for reporting it, liability is aggravated.

We do not give an exact figure because it depends on the circumstances, but it is worth being clear about this: the absence of a protocol is easy to detect and hard to justify on the day a problem arises.

How Tranquilia generates it

Tranquilia prepares the protocol against harassment adapted to your company, with the reporting procedure, the confidentiality guarantees and the protection measures already set out, ready to be communicated to your workforce. If you are a gestoría (a firm that handles other businesses' administrative paperwork), you generate it for each client company.

Frequently asked questions

Do I need a harassment protocol if there are fewer than 50 of us?

Yes. The equality plan is required from 50 people upwards, but every company must have the protocol against sexual harassment and harassment on grounds of sex, no matter how many of you there are.

Is the harassment protocol the same as the whistleblowing channel?

No. The whistleblowing channel under Ley 2/2023 deals with legal infringements in general and is obligatory, above all, from 50 workers upwards. The harassment protocol is specific to sexual harassment and harassment on grounds of sex, and does not depend on size.

Does it have to be negotiated with the workforce?

It is advisable to involve the workers' representatives in drawing it up where they exist. Even where there are none, the protocol must be communicated to the whole workforce so that they know it exists and how to use it.

Official sources

• BOE — Ley Orgánica 3/2007 para la igualdad efectiva de mujeres y hombres, article 48.
• BOE — Ley Orgánica 10/2022 de garantía integral de la libertad sexual.
• Instituto de las Mujeres.

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General information about the rules. It does not replace a lawyer's advice or an analysis of your specific case. If you have any doubts, check with your gestoría or with a legal professional.