Regarding the delicate balance between Equality and Compliance policies in relation to Protocols against Mobbing and Sexual Harassment
Mobbing and Sexual Harassment offences, as defined in articles 173.1 and 184 of the Spanish Criminal Code, respectively, are cross-cutting risks that can be observed in any environment where people interact and, therefore, in any company, foundation, association, among others, regardless of their activity.
The purpose of this note is to carry out a modest analysis concerning the impact that the interaction between all regulations that shape the legal framework applicable to this subject has on business organizations and, in particular, on the balance between Equality and Compliance functions in relation to the Protocols against mobbing and sexual harassment.
Firstly, in accordance with article 31 bis of the Spanish Criminal Code, the above defined criminal offenses are included among the types of conducts that may entail corporate criminal liability. This relatively recent possibility was introduced by means of the Spanish Organic Law 10/2022, of September 6, on the Integral Protection of Sexual Freedom (hereinafter, Organic Law 10/2022).
Although, clearly, the corporate criminal liability arising from these offenses cannot be attributed automatically nor objectively, the situations in which entities with a regular economic activity could be held criminally liable for these conducts are not at all far-fetched.
Illustratively, an entity could be criminally liable for the offence of mobbing or sexual harassment if it became aware of the existence, within it, of behaviours possibly involving those types of harassment and, however, decided to take no action in this regard. Such a decision may be based on the interest in preserving the integrity of the individual or individuals who have engaged in such conduct; on mere indifference; or on the benefit that the resignation of the individual suffering the harassment in question can report to the company – in other words, saving the expenses associated with his or her dismissal.
As for the legal framework that applies, in accordance to article 12 of the Organic Law 10/2022, companies must promote workplace conditions that prevent the perpetration of sexual offenses and other forms of misconduct against sexual freedom and moral integrity at work, focusing, especially, on sexual harassment and gender-based harassment.
Likewise, business organizations must establish specific measures to prevent such conducts and to deal with any complaints or claims that may be brought by those who have been victims of such crimes, including those suffered within the digital sphere.
The above policies tend to be regulated within the framework of Protocols meant to address mobbing or sexual harassment incidents, since these documents fall somewhere between being considered as part of Gender Equality Plans and Compliance Management Systems.
Although this matter may lead to tensions between both areas, their collaboration is imperative in order to ensure the protection of informants, efficient management and resolution of potential mobbing and sexual harassment incidents, as well as compliance with the various applicable standards and regulations.
In this regard, the fact that equality standards are not the only ones affecting this matter must be kept in mind. As it will be further developed below, the Spanish Law 2/2023 of February 20th, regarding the protection of individuals reporting legal and regulatory violations and the fight against corruption (hereinafter, Law 2/2023), lays down a series of requirements that companies must take into consideration, in particular, when defining communication channels concerning possible situations of mobbing or sexual harassment in their Protocols.
Thus, the implementation of Law 2/2023 has led to the imposition of different legal obligations applicable to companies with more than fifty (50) employees (art. 10 Law 2/2023), among other entities, in relation to their internal ethics or whistleblowing channels.
The purpose of these obligations is none other than to ensure the protection of those who report particular irregularities. Specifically, and among others, the communication of actions or omissions that may constitute serious or very serious criminal or administrative offenses (article 2.1.b) Law 2/2023) is covered by Law 2/2023.
Since, as introduced above, both mobbing harassment and sexual harassment conducts may constitute criminal offenses, communications issued via internal channels concerning these behaviours should undeniably be deemed to fall under the scope of protection of Law 2/2023.
Protection under Law 2/2023 has, among others, the following effects in relation to internal communications regarding possible situations of mobbing or sexual harassment:
- First, specific obligations will exist in relation to a first handling (non-investigation) of any communications received. Among others, in terms of confidentiality, data protection, notification of receipt with a required minimum content within a period of seven (7) natural days, documentary record with a series of formalities, etc.
Given that these guarantees must be present in all channels that enable communications regarding infringements that fall within the objective scope of Law 2/2023, it is advisable to have a single communication channel for this purpose. That is, a single Ethics Channel that allows the communication of any breach of standards, regardless of the subject matter.
All the above notwithstanding the fact that this issue may only affect the communication phase, with subsequent processing and investigation of the communications being conducted by specialized agencies, such as the Equality Commissions, regarding mobbing and sexual harassment.
- On the other hand, it is mandatory to allow the submission of anonymous communications (art. 7 Law 2/2023), an issue that has traditionally been controversial in relation to the Protocols against mobbing and sexual harassment.
In this sense, including in internal regulations the obligation of identifying those reporting possible cases of mobbing or sexual harassment must be considered as a direct contravention of the guarantees established in Law 2/2023 (an issue that may be subject to punishment, as will be explained in the paragraphs below).
This, regardless of the fact that, in the event of having insufficient information to process an anonymous communication, such communication may be archived due to the impossibility of its proper handling.
Furthermore, it should be noted that, strictly speaking, the inclusion of the complainant’s identification is not a condition required to process any communication concerning mobbing or sexual harassment.
For instance, among others, when reporting a situation of harassment in which the informant is not involved, or when reporting a situation of environmental harassment (i.e., conducts that create a degrading or intimidating environment, in general), the identity of the complainant is not, at all, a key element for its correct processing and resolution.
Finally, it should be noted that non-compliance with Law 2/2023 is subjected to significant economic sanctions. In particular, the limitation of the right to submit anonymous communications can be understood as a serious or very serious infringement, corresponding to the following sanctions:
- Serious infringements are subjected to a fine of up to thirty thousand euros (€30,000) for individuals and up to six hundred thousand euros (€600,000) for legal entities.
- Very serious infringements are subjected to a fine of up to three hundred thousand euros (300,000 euros) in the case of individuals and up to one million euros (1,000,000 euros) in the case of legal entities.
In conclusion, the various regulatory obligations described in this note imply that companies, foundations, associations and other types of entities must find a balance in the development of their Protocols, specifically when dealing with situations of mobbing and sexual harassment.
Although the intervention of specialized members with a profound sensitivity and vast experience in these matters is undoubtedly positive, such intervention must be coordinated alongside the Compliance Department, which is usually responsible for the Ethics Channel, in accordance with the standards established in Law 2/2023. All the above, in order to ensure a thorough protection of the informants, as well as compliance with all the applicable legislation.
Finally, it is worth mentioning that Molins Defensa Penal can provide advice on the drafting or revision of Protocols to deal with cases involving mobbing and sexual harassment, which comply with the applicable standards, through its Compliance Department; as well as advising or assisting in its implementation, in order to ensure the appropriate response and investigation of those cases involving mobbing or sexual harassment, in compliance with the complex regulatory framework that applies, through its Internal Investigations Department.
Guillem Gómez Casalta
Lawyer and Coordinator of the Compliance Department of Molins Defensa Penal.