Spain: The labor measures of Law 4/2023 and their enforceability

Spain - 
Federico Durán López, of counsel at Garrigues Labor and Employment Law Department

There is considerable uncertainty about the obligation to have protocols under Law 4/2023. It is not possible to conclude from the law whether this obligation will be effective as of 2 March 2024 or whether it is pending regulatory development.

Law 4/2023, of 28 February (BOE of 1 March), aims, in its words, to guarantee and promote the right to real and effective equality of LGTBI people in different social spheres, including the workplace. In relation to the latter, Article 15, on LGTBI equality and non-discrimination in companies, created a new obligation for companies with more than fifty workers, by virtue of which they must have a "planned set of measures and resources to achieve real and effective equality of LGTBI people, including a protocol for dealing with harassment or violence against LGTBI people".

From the literal wording of this paragraph 1 of Article 15, it is clear, firstly, that companies with more than fifty employees must have a planned set of measures and resources to achieve real and effective equality of LGTBI people, and this, it is added, within a maximum period of twelve months from the date of entry into force of the law (the day after its publication in the BOE: twentieth final provision). Therefore, as of 2 March 2024, all those companies whose workforce exceeds the numerical threshold set by Law 4/2023 would, in principle, be required to comply with this obligation and would have to have this planning of measures and resources. Several voices have already been raised, in the legal debate, recalling the date and the obligation. However, neither is the legal mandate clear, nor is it clear that it is enforceable from the date indicated.

And it is not clear because an initial interpretative doubt arises from the final reference in Article 15(1) itself to the fact that "the content and scope of these measures shall be developed by regulation". It could be argued that the law does not make the clear and precise mandate of the first paragraph of Article 15(1) conditional on the regulatory development provided for, so that the enforceability of the obligation to have a planned set of measures and resources would only be conditional on the passing of the twelve-month period following the law's entry into force, and not on the existence of the aforementioned regulatory development. This regulatory development would simply specify the legislative mandate and specify the terms of its fulfilment, so that it would not be necessary for the application of the legal mandate. It cannot be ruled out that this is the interpretation that, at least initially, the Administration, and in particular the Labor Inspectorate, will sustain when it comes to monitoring compliance with the law.

However, it can also be argued that only regulatory implementation would make the legal mandate enforceable. Note that such development is foreseen to fix the "content and scope" of the measures. It is difficult to negotiate and establish measures whose content and scope (which should be set by the regulatory power) are unknown. Regulatory development, expressly called for by the law, seems necessary in this case in order to have a minimum of legal certainty. And this regulatory development being in the hands of the government (which would already have had a year to do so), it would be difficult to make companies bear the consequences of non-compliance with the legal mandate that requires it. It should be borne in mind that the law states that the content and scope of the measures "will be developed", not that they can be developed.

And another important argument along these lines is that the difference, in this respect, with Organic Law 3/2007, of 22 March, for the effective equality of women and men, is significant. This law regulates the concept and content of equality plans (Article 46), and does not entrust the specifics of such concept and content to regulatory development. What is more, this regulatory development is not even expressly provided for, as no reference is made to it in the third final provision of the law ("Habilitaciones reglamentarias"), which specifies the regulatory developments required of it. Compliance with the legal mandates was therefore required prior to the enactment of Royal Decree 901/2020 of 13 October, which regulated equality plans and their registration.

Finally, it should not be forgotten that the very ambiguity of the regulation makes it difficult, in the absence of regulatory development, to comply with it. Companies are not required to have an equality plan in relation to these people, and the only defined and enforceable content of the planned set of measures and resources is that they include an action protocol for dealing with harassment or violence against LGTBI people.

Therefore, although it should not be forgotten that in the interpretation of the law by administrative and judicial bodies it may be argued that compliance with its mandates does not depend on the required regulatory development, it can be argued that, until such regulatory development takes place and the content and scope of the measures to be implemented are specified, companies comply with the obligations directly derived from the law if they have an action protocol for dealing with harassment or violence against LGTBI people.

One last doubt: can (or should) equality and non-discrimination measures for LGTBI people in companies be included in the equality plans adopted in them, or should they in any case be subject to a separate formalization? Although nothing is expressly foreseen in this respect, Law 4/2023 (whose systematics can certainly be improved) states (Article 55.3) that "in the elaboration of equality and non-discrimination plans, trans persons shall be expressly included, with special attention to trans women". This mandate, despite the flawed systematics of the law, seems clear that it is not restricted to public employment or to the administrative sphere. The application of the provisions of the law to public employment is contained in Article 11 of the law. The whole of its labor provisions applies to private employment and, in the terms of Article 11, to public employment. Article 55 is included in Title II, referring to measures for the real and effective equality of transgender people and, within it, in Chapter II on public policies to promote such equality. These are public policies to promote equality in general, not reduced to the public sector. The second section of the chapter, which includes Article 55, also refers in general to measures in the field of employment. Public policies do not refer exclusively to public employment but to the labor field in general, as is clearly shown in Article 55(2), which clearly refers to private employment. In this context, the first two numbers of Article 55 provide for actions by the public authorities (but referring to the private sector).

In this context, the first two numbers of Article 55 refer to actions by the public authorities (but referring to the private sector), and number 3 refers to equality plans, and cannot be interpreted as referring to equality plans in the public sector, because the other measures refer to the private sector. This would imply that companies, in the equality plans, must expressly include trans people, with special attention to trans women. And if LGTBI people are also included, would that be enough to fulfil the mandate of Article 15?

All of this is reminiscent of "the contracting party of the first part", a brilliant finding by Marx (Groucho), to whom our legislator should have to pay royalties.