How companies can meet LGBTI+ regulations

Full and effective equality of LGBTI+ people is a fundamental right and a competitive factor for companies. The recent regulation on this topic (Act 4/2023, of February 28) imposes a series of obligations and challenges for companies, some of which were pending regulatory development (as explained in our post Act on Transgender People and LGBTI+ Rights: impact on labor relations in Spain).

Below, we highlight the regulation’s main developments, so companies can start defining their action plan

• The regulation prioritizes negotiating the planned set of measures at a collective agreement level. Companies that have their own collective agreement must negotiate these measures in the framework of the negotiating committee, which must be set up within three months from its entry into force, i.e., before January 10, 2025. In the case of a sector-specific collective bargaining agreement, the agreement can establish that the measures be adapted at company level.
• If there is no legal representation of the workforce, negotiation with the trade unions is only stipulated when companies do not have an applicable collective agreement (a less likely situation in practice), in which case the deadline for setting up the negotiating committee would extend to six months. In this situation, the regulation enables companies to unilaterally approve measures if the trade unions do not respond to the companies’ calls for a meeting after 20 days (10 initial days, extendable for another 10 days). This is good news given the difficulties generated when negotiating equality plans (as explained in our post Registration of equality plans finally unblocked).
• The regulation also provides for the minimum content regarding the planned measures to be considered in the negotiation of LGBTI+ plans. They must be developed in a cross-sectoral manner and cover a wide range of actions, from training and awareness-raising, to measures aimed at access to employment, professional classification and promotion, and permits and social benefits. In any case, this is the minimum content and could therefore be expanded on by collective bargaining and by the companies.
• The regulation advocates agile negotiation and seeks to avoid an unjustified negotiation blockage, so that, three months after setting up the negotiating committee without an agreement—or if the applicable collective bargaining agreement does not provide for the measures—companies can approve the LGBTI+ plan, in line with the contents of the regulation, at least provisionally.
• Finally, the regulation clarifies that the obligation to have an anti-harassment and anti-violence policy for LGBTI+ people will be considered met when companies have a general anti-harassment policy, provided it includes specific measures for LGBTI+ people that meet the minimum content required by the regulation. Therefore, companies must have a specific prevention protocol or adapt existing ones to the regulation, which details the procedure for the harassment protocol, including the filing of complaints, precautionary measures and their resolution.

In short, this new regulation requires companies to adapt to the minimum content now required—which can be completed and improved within the collective bargaining framework—to achieve full and effective equality for LGBTI+ people and an opportunity to improve companies’ working environments, reputations and commitment to diversity.