The obligation to have an Equality Plan in companies is extended
What is an equality plan?
Although it is perhaps a common knowledge concept, when we talk about an Equality Plan we are referring to a regulatory instrument that, among other things, >its purpose is to eliminate any type of inequality or discrimination that may occur in an organization (not only in a company, it can also be applied in the Administration) based on gender and to integrate equal treatment and opportunities between women and men as a basic benefit of the organization and as the axis of management procedures. The Equality Plan must promote the elimination of imbalances and inequality between women and men.
The Organic Law 3/2007, of March 22, for effective equality between women and men, norm of the Zapatero era, to situate ourselves, published in the BOE of the following day, defines it in its article 46.1 as “an ordered set of measures, adopted after carrying out a diagnosis of the situation, aimed at achieving equal treatment and opportunities between women and men in the organization and eliminate discrimination based on sex. And add in the second paragraph:
The equality plans will establish the specific equality objectives to be achieved, the strategies and practices to be adopted to achieve them, as well as the establishment of effective monitoring and evaluation systems of the objectives set”
This state provision has had its local version in many Autonomous Communities, logically without differing much, and perhaps improving the text of the state standard.
With this, companies must adopt measures to avoid any type of labor discrimination between women and men and prepare an Equality Plan, in case the company initially has more of 250 workers (and hence the opportunity of this brief note) or has been sanctioned by the administrative authority in substitution of another type of sanction, of the so-called “accessories” with the preparation of a Plan (article 45.4 of the LOI).
The establishment of equality plans in companies will comply with the provisions of art. 85 of the Workers’ Statute (hereinafter ET), arts. 45 to 47 of the LOI and the applicable collective agreement.
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Novelties that we must take into account in the company
The first and most important, the one brought by the Royal Decree-Law 6/2019, of March 1, on “urgent measures” to guarantee equal treatment and opportunities between women and men in employment and occupation, and among them in art. 45 of the LOI, since there has been a general extension of the obligation to implement an Equality Plan for companies with more than 50 workers -within a transitional period of three years that began to count from March 7, 2019- compared to those of more than two hundred and fifty workers previously established. (art. 85 ET; arts. 45-49 LOI and art. 1 and DT12 RD-law 6/2019) The change is very important, because according to the European cataloging of companies by size in Spain (which takes into account, in addition to the turnover or balance sheet of the company, the number of employees) the business fabric is as follows:
TAMAÑO DE EMPRESA
Nº EMPRESAS ACTIVAS
In other words, some seventy-five thousand companies are affected by this new obligation, since obviously there has been a general expansion in the obligation to implement an Equality Plan to companies with more than 50 workers -inside. As we have said, of a transitional period of three years from March 7, 2019 – compared to those of more than two hundred and fifty workers, previously established. (art. 85 ET; arts. 45 to 49 LOI and art. 1 and DT 12ª RD-law 6/2019).
As of March 7, 2021, it is extended and they are now mandatory, as we will see, for companies with more than one hundred workers, but those with a smaller workforce, 51 to 100 should already consider the need, or what is the same, they have one year to have their homework done on March 7, 2022, since there is a pre-established calendar such as the one detailed below, it does not seem that the Inspection of Labor is going to give a lot of respite to those who are in the open as of that date, nor are moratoriums on the horizon.
This transitional period is respected after Royal Decree 901/2020, of October 13. In this way, there will be an obligation to implement an Equality Plan, depending on the number of workers on the staff.
Taking into account the regulatory modifications made with effect from March 8, 2019 by Royal Decree-Law 6/2019 on the LOI, and respecting the existence of a transitional period of application, we must divide the obligation to implement equality plans based on the number of workers on the payroll, in the following periods:
|Obligation to prepare and apply an equality plan||Number of workers in the company according to the gradual application schedule. Articles 45 and 46 LOI, in wording given by Royal Decree-Law 6/2019, of March 1 (D.T. 12ª LOI)|
|Until 03/06/2020||Companies with more than 250 workers|
|As of 03/07/2020||Companies with between 151 and 250 workers|
|From 03/07/2021||Companies with between 101 and 150 workers|
|As of 03/07/2022||Companies with between 51 and 100 workers|
The other rule that we will have to handle is Royal Decree 901/2020, of October 13 (Royal Decree 901/2020, of October 13, by which Equality plans and their registration are regulated and Royal Decree 713/2010, of May 28, on registration and deposit of collective labor agreements and agreements is modified (BOE October 14)) . Regulates the regulatory development of equality plans, as well as their diagnosis, including the obligations of registration, deposit and access, as provided in the LOI and in the provisions of arts. 17.5 and 85.2 of the ET and what is established in this regard by collective agreements, either company or higher level.
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As art. 46.2 of the LOI, the equality plans will contain an ordered set of evaluable measures aimed at removing the obstacles that prevent or hinder the effective equality of women and men. This precept continues, a prior diagnosis will be made negotiated, where appropriate, with the legal representation of the workers. And this is where the advice of a specialist is necessary, which can be provided from the office.
In addition to the prior diagnosis, as minimum content of the Plan, we point out the following matters, on which advice will also be required:
- Selection and hiring process.
- Professional classification.
- Professional promotion.
- Working conditions, including salary audit between women and men.
- Co-responsible exercise of the rights of personal, family and work life.
- Female underrepresentation.
- Prevention of sexual and gender-based harassment.
Companies should know that the regulation also establishes that the diagnosis will be carried out within the Equality Plan Negotiating Commission, for which which, the management of the company will provide all the data and information necessary to prepare it in relation to the matters listed above, as well as the data of the Registry regulated in article 28, section 2 of the ET. It goes without saying that, if the elaboration of the Equality Plan is complex, it is essential to start with a good diagnosis.
Finally we must add (art. 46.3 of the LOI) that the equality plans will include the entirety of a company, without prejudice to the establishment of appropriate special actions with respect to certain workplaces
Advice on these matters is important, since there is already some pronouncement of the Supreme Court, which has had a certain resonance, as was the Judgment of the Social Chamber, Section 1 ) Judgment no. 832/2018 of September 13, which he understood was an attack against the fundamental right to freedom of association, in its aspect of the right to collective bargaining, declaring the nullity of the Equality Plan due to the unilateral implementation by the company due to the lack of agreement with union representation. The Supreme Court confirmed that, although negotiations were held with the workers’ representatives, the company slowed down the negotiations to the maximum and avoided the timely delivery of the legally required documentation requested by the workers.
Main questions that can be raised by companies
In line with what has been stated so far, many doubts may assail companies, such as how the numerical requirement is computed (companies with more than 50 workers) to have the obligation to implement an Equality Plan; the procedures for the initiation of the process of establishing the Plan; the need to consult the applicable agreement of a higher scope to the company in case it establishes any particularity in this regard (for example, that it has lowered the threshold of the obligation to establish the plan below the already legally reduced 250 workers); how to act when the labor authority has agreed in a disciplinary procedure to replace accessory sanctions with the preparation and application of said plan, and must comply with the terms of the provisions of the Labor Authority; if it can be implemented voluntarily, that is after consultation or negotiation with the legal representation of the workers; if equality in a broad sense does not affect companies with less than fifty workers, it should be noted, without leaving this unresolved doubt, that the LOI establishes that all companies, regardless of the number of workers on the payroll, strong> are obliged to respect equal treatment and opportunities in the workplace and, to this end, they must adopt measures aimed at avoiding any type of labor discrimination between women and men, as well as promoting working conditions that prevent harassment sexual harassment and harassment based on sex and arbitrate specific procedures both for its prevention and for channeling complaints or claims that may be made by those who have been subjected to it.
Another doubt, the effects of the most recent doctrine of the Supreme Court that has determined that equality plans have the rank of collective agreement and the use of an “ad hoc” commission to negotiate said plans is limited to the cases in which the law expressly establishes, and this is indicated in judgment 95/2021, January 26 (appeal 50/2020), which has come to justify the reason for this obligation, resolution for which Judge Ricardo Bodas was the rapporteur.
All of the above is aligned, or if you prefer, it is seasoned with the fact that on October 14, 2020, two new provisions related not so much to the Equality in general but with more specific aspects of salary matters. The first, royal decree regarding equality plans, develops part of the articles of the LOI, and we have already referred to it, Royal Decree 901/2020, of October 13, which regulates equality plans and their record. It came into force on January 14, 2021, and we have already indicated that it respects the already established deadlines for the implementation of the plans, but also contemplates the adaptation for companies that already have an equality plan in force, term which is established for one year from the aforementioned January 14.
The second provision is Royal Decree 902/2020, of October 13, on equal pay between women and men, whose entry into force is scheduled for April 14 (date I don’t know if it was searched on purpose). It regulates for the first time how remuneration audits and salary transparency should be. Its objective is the fight against the salary gap, concepts that would all give for three autonomous jobs, but they are obligations that companies must be aware of and increase their catalog of occupations in the matter, in which it is better to go hand in hand with the advisor.< /p>
Infractions and penalties
Failure to comply with this obligation will entail a serious or very serious sanction for the company, according to the new wording of articles 7 and 8 of Royal Legislative Decree 5/2000, of 4 August, which approves the consolidated text of the Law on Offenses and Sanctions in the Social Order (LISOS).
Specifically the art. 7, in its section 13, classifies as a serious infraction “Not complying with the obligations established in Organic Law 3/2007, of March 22, for the effective equality of women in terms of equality plans and measures and men, the Workers’ Statute or the applicable collective agreement.”
Very serious offences
And art. 8 in its section 17 regulates as a very serious infraction “Not preparing or not applying the equality plan, or doing so in manifest breach of the terms provided, when the obligation to carry out said plan responds to what is established in section 2 of article 46 bis of this Law.” (As we have already mentioned, the possibility of substituting as an accessory sanction, in cases of direct or indirect discrimination based on sex, the preparation and application of an equality plan in the company is foreseen, when it is not legally or conventionally obliged to have of him)
As graduation criteria, the contents of article 39.2 of the LISOS will be applied, which very briefly range from a fine of 626 to 187,515 euros, depending on the classification of the offense and its graduation.
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Department of Labor Law