The protocol of labor and sexual harassment. Is it mandatory in companies?


Desde la Law 31/1995 on the Prevention of Occupational Risks, companies are required to prevent and reduce both physical accidents and psychosocial risks, even if they had a single worker.

This Law has been developed normatively and currently we can highlight the Royal Decree-Law 6/2019, of 1 March, Organic Law 7/2007 on the Equality of men and women and Royal Decree 901/2020, of 13 October, regulating equality plans and their registration and amending Royal Decree 713/2010, of 28 May, on the registration and deposit of collective labour agreements and agreements. Which make special mention, about the protocol of sexual harassment and for reasons of sex.

What is the purpose of the workplace harassment protocol?

The fundamental objective is to create an environment that respects the rights of workers, eliminating any form of harassment or discrimination, which incite unwanted situations and even persecuted in the Social or Criminal Jurisdiction.

All this can cause the employee health problems such as anxiety, stress, loss of self-esteem, depression and it is even possible that a leave of leave due to depression is necessary.

The company must have well-defined protocols that prevent and stop actions that harm workers. The protocol for the prevention and action of workplace harassment aims to define guidelines that allow us to identify a situation of harassment, whether moral, sexual or because of sex, in order to solve a discriminatory situation, trying, at all times, to guarantee the rights of the victims.

Having an action plan is essential to prevent mobbing and sexual harassment. Having an adequate manual of conduct in the organization will help us prevent and detect these cases.

Therefore, it is more important than ever to have an action plan to prevent and detect unwanted behaviors appropriate to psychosocial risks. In addition to improving the working conditions of our employees and that the reputation of the company is not negatively affected.

This will achieve a effectively to complaints. In the event of an alleged situation of workplace harassment or harassment sexual. The affected person will describe the facts, dates, alleged harassers, evidence and witnesses who have presented the situation.

It is essential that companies are proactive in this type of situation and develop protocols for workplace and sexual harassment. Tailored to each type of company, to avoid all those behaviors that influence the health of workers.

The more information the person concerned provides to clarify the facts, the easier the organization can make an appropriate decision in this regard.

  • It constitutes moral harassment, work or "mobbing", the situation where in which a person (or group of persons) exercises extreme psychological violence on another person in the workplace, systematically and recurrently over a prolonged period of time with the aim of destroying their communication networks and reputation and disrupting the performance of their duties, all aimed at getting that person to leave the job.
  • It constitutes sexual harassment of any behavior, verbal or physical, of a sexual nature which is unwanted on the part of the person subject to such conduct and has the purpose or effect of violating the dignity of a person, in particular when an intimidating, degrading or offensive environment is created, through inappropriate attitudes, statements or comments.
  • It constitutes harassment based on sex all conduct based on the sex of a person, with the purpose or effect of violating their dignity and creating an intimidating, degrading or offensive environment, as well as any adverse treatment or negative effect that occurs on a person as a result of the presentation by them of a complaint, claim, complaint, demand or appeal, aimed at preventing discrimination and at enforcing effective compliance with the principle of equality between women and men.

The Human Resources Directorate is responsible for the overall management of the procedure contained in this Protocol, ensuring its correct application, dissemination, monitoring and continuous improvement, so that it is permanently updated with the real operation.

In the event that the elected person detects an unwanted situation or not allowed by the organization, he must take disciplined actions, to debug responsibilities in this regard or its file.

Every day the sentences that condemn companies are more frequent, both in the Social and Criminal Jurisdictions.

Rights violated by workplace harassment

Below we show all the rights violated in all the Spanish laws that currently exist.

Spanish Constitution

  • Article 10: It grants the right to the dignity of the person and to his inherent inviolable rights. It also grants the free development of the personality, respect for the law and the rights of others that are the foundation of the political order and social peace.
  • Article 14: It affirms that all Spaniards are equal before the law, without discrimination on the basis of birth, race, sex, religion, opinion or any other personal or social circumstance.
  • Article 15: All Spaniards have the right to life and to physical and moral integrity and under no circumstances may they be subjected to torture or to inhuman or degrading treatment or punishment.

Penal code

  • Article 173.1: It explains that the harasser and other people who take hostile or humiliating actions against another in a work or functional environment taking advantage of their relationship of superiority may be punished with imprisonment from six months to two years.
  • Article 177: If, in addition, moral integrity is threatened, with injury or damage to life, physical integrity, health, sexual freedom, the acts will be punished separately with the penalty that corresponds to them for the crimes committed, except when it is already punishable by law.
  • Article 184: It can be punished with a prison sentence of three to five months or with a fine of six to ten months if sexual favors are requested that cause the victim a seriously intimidating, hostile or humiliating situation within the workplace. If in this case, the victim is particularly vulnerable (because of his age, illness or situation), he will be punished with a prison sentence of five to seven months or a fine of ten to fourteen months. if the person guilty of sexual harassment has committed the acts by taking advantage of a situation of labor, teaching or hierarchical superiority and causing the victim an evil related to the expectations he may have in that area, he will be punished with a prison sentence of five to seven months or a fine of ten to fourteen months. If in this case, the victim is particularly vulnerable, he shall be punished by imprisonment from six months to one year.

Workers' Statute

  • Article 4.2: Within the Spanish State, no discrimination may be directly or indirectly on the grounds of sex, marital status, age (within the limits set by law), racial or ethnic origin, social status, religion or belief, political ideas, sexual orientation, membership or not of a trade union, language, etc. Nor may discrimination be made on the basis of disability, provided that they are able to perform the job or employment properly.

    Spaniards have the right to their physical integrity and to an appropriate occupational risk prevention policy, as well as to respect for their privacy and due consideration for their dignity, including protection against harassment based on racial or ethnic origin, religion or belief, disability, age or sexual orientation, and against sexual harassment and harassment based on sex.

  • Article 17: Orders to discriminate and decisions of the employer involving unfavourable treatment of workers in reaction to a complaint made in the undertaking or to an administrative or judicial action aimed at enforcing compliance with the principle of equal treatment and non-discrimination shall also be null and void.
  • Article 19: The worker has the right to effective protection in terms of safety and health at work.

Law on the Prevention of Occupational Risks

  • Article 14: Workers have the right to effective protection with regard to occupational safety and health. This means that the employer must ensure the safety and health of workers in all aspects related to work. To this end, it must carry out a prevention of occupational risks through the integration of preventive activity in the company and the adoption of the measures that are necessary for the protection of the safety and health of workers. Public administrations also have the duty to protect the personnel of their service.
  • Articles 15 and 16: The employer shall apply the measures that make up the general duty of prevention provided for in order to avoid risks and adapt the work to the person. If the preventive measures prove insufficient, the employer will carry out an investigation in this regard, with the aim of detecting the causes of these events.

Law on Offences and Sanctions in the Social Order

Article 8: The following are considered very serious infringements:

  • If the employer carries out actions contrary to respect for privacy and due consideration for the dignity of workers.
  • If the company makes decisions that involve unfavorable direct or indirect discrimination of any kind and for any reason, as well as the decisions of the employer that involve an unfavorable treatment of workers as a reaction to a claim made in the company.
  • Sexual harassment whenever it occurs within the workplace.

Where can workplace harassment be reported?

People affected by a situation of workplace harassment must follow a procedure, with the aim of protecting their rights and their job. When a worker suspects that he is being the victim of any of the forms of workplace harassment, he can resort to the following:

  • Report to the company's Health and Safety Committee. Most medium and large companies have this type of committee.
  • Inform the union representative. It is useful when workplace harassment occurs at the peer level and not from hierarchical staff.
  • Consult if there is an action protocol in cases of violence or harassment at work to activate it.
  • Inform the management of the company.
  • File a complaint with the Labor Inspectorate.
  • File a complaint with the competent courts. That is, to initiate a criminal or civil procedure, or contentious-administrative in the case of a public official.

However, before proceeding to the complaint of workplace harassment, it is best to collect the necessary evidence about the situation suffered. As for example of this evidence, there is the possible testimony of witnesses of the harassment, text messages, recorded calls, medical and expert reports, etc.

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