Equal opportunity policy: Sanctions
If your company has more than 50 employees, remember that you must draw up an Equal opportunity policy. What sanctions are you exposed to if you do not comply with this obligation? Will you have to pay a fine?
Equal treatment of all employees
Adopt equality measures
Anti-discrimination
Whether or not your company has more or less than 50 employees and whether or not it has to implement an Equality Plan, it is obliged to respect equal treatment and equal opportunities for men and women in the workplace. To this end, it must adopt measures aimed at avoiding any type of discrimination in the workplace. Thus, it must negotiate and, where appropriate, agree such measures with the workers’ representatives.
Equal opportunity policy for companies
In which cases should an equality plan be made?
In any case, you are currently obliged to draw up and negotiate an Equality Plan if your company is in one of the following cases:
If you have a workforce of more than 50 employees at any time of the year, regardless of the type of contract or its duration.
If you are obliged to do so by your collective agreement (regardless of the number of employees).
Or if, in the framework of a sanctioning procedure, the Labour Inspectorate has decided not to impose a sanction on the company in exchange for drawing up the Plan.
Equality in the company or in the workplace?
The plan must cover the whole company, so it affects all its workplaces, regardless of whether special or additional measures are established in one or more of them where it is found to be necessary.
Companies in a group of companies may draw up a single plan for all or part of the companies in the group. However, this single plan must include information on each one, as well as justifying the convenience of having a single Equality Plan.
What happens if I don't have an Equal opportunity policy?
If your company has more than 50 employees and fails to comply with its obligation to have an Equal opportunity policy Plan, the Labour Inspectorate may impose fines of between 751 and 7,500 euros.
Fines for not having an Equal opportunity policy plan
It is a serious infringement
If you do not comply with your obligations regarding equality plans and measures, you will be fined between 751 and 7,500 euros. In addition, the Labour Inspectorate can check whether your plan has been registered, whether it is still in force, whether it has been adapted following a previous request from the Inspectorate, whether it is known by the staff or whether it is applicable to the whole company, as well as whether it complies with all the minimum legal content.
In order to check for recidivism, you can also check whether you have been previously sanctioned for discrimination on the basis of sex.
Mandatory aspects of the plan
Please note that the Inspectorate will also check the following aspects in relation to the plan, which go beyond its existence and implementation:
For its elaboration, a parity equality committee must be set up, with a balanced composition of men and women (and these must occupy different levels in the company).
A procedure must be established for the resolution of discrepancies in the monitoring, evaluation, adequacy and revision of the Equal opportunity policy.
It cannot be limited to reproducing a single model plan for all companies.
The measures and objectives must be feasible, specific and effective. The plan must contain the objectives to be achieved, the timetable for their implementation (and the person in charge) and the resources needed for their implementation.
Finally, it must include a realistic monitoring and evaluation system, which allows the degree of achievement of the objectives set to be known. To this end, it must establish the compliance indicators, the tools to be used and the frequency of monitoring.
Both the failure to draw up the plan and the fact of formally drawing it up but not applying it or implementing it effectively (i.e. not aiming at the real elimination of discrimination on grounds of sex) are penalised by the same amount.
Substitute measure
Very serious infringement
If you are obliged to draw up and implement the Equality Plan because this has been determined by the Inspectorate as a substitute measure for a sanction and you fail to do so, the fine imposed will be increased – with an amount ranging from 7,501 to 225,018 euros per workplace – and will be classified as a very serious infringement [LISOS, art. 8.17].
In addition to the sanction
Furthermore, the above-mentioned substitution of sanctions shall be rendered null and void and the following restrictions shall be imposed:
The automatic loss -and in proportion to the number of workers affected by the infringement- of the aid and benefits enjoyed in terms of employment programmes.
Exclusion from access to such benefits for a period of six months to two years.
Other non-compliance
Remuneration register
Sanction
Your company is also obliged to keep a record of the average wage paid to your staff, broken down by gender. Failure to comply with this obligation is also punishable .
Purpose
The purpose of this register is to ensure equal treatment and equal opportunities between women and men, especially in terms of pay (so that there is no discrimination on grounds of sex). For this purpose, if your company has two workers of different sexes performing work of equal value (i.e. if their functions or tasks, their level of training and their working conditions are equivalent), you must pay them both the same pay.
Negotiation
The Inspectorate also checks that your company has negotiated the Equality Plan with the workers’ representatives (RLT). The courts have ruled out the possibility of negotiating the Equality Plan by means of an ad hoc committee, even if there is no legal representation of the workers, as this is an exceptional negotiating formula.
Therefore, it will only be able to register its Equality Plan without the participation of the LWR if it is the representatives themselves who, despite being repeatedly summoned by the company, have not wanted to participate.
Equality plans must be registered, within 15 days of their signature, in the Register of Collective Agreements and Collective Bargaining Agreements, except in those Autonomous Communities that have other registers created for this purpose.
LGTBI Equality
Discrimination
Recently, the obligation has been established for companies to adopt measures for the prevention and detection of situations of discrimination against LGTBI people. If your company has more than 50 employees, it must have a planned set of measures to achieve real and effective equality for LGTBI people, including an action protocol for dealing with harassment or violence against these groups.
There is no regulatory development that regulates the content and scope of the new measures. Therefore, if you do not want to approve specific protocols, include measures for the protection of LGTBI workers in the drafting and implementation of your company’s diagnoses and equality plans.
Sanction?
At present, there is still no sanction for failure to adopt these measures (there is no specific sanction for failure to comply with the obligation to have an LGTBI plan). However, the Inspectorate may act when it detects that there has been a case of discrimination or that a fundamental right of an LGTBI person has been violated.
