WorkLife 2.0: Active Spanish legislator: New laws enhancing diversity at work

2023 has comes along with several important developments in employment law in Spain. On 1 March, Law 4/2023, of 28 February, for the real and effective equality of trans persons and for the guarantee of the rights of LGBTI persons (the LGBTI Equality Act), and Law 3/2023, of 28 February, on Employment (the Employment Act), were published. These two pieces of legislation incorporate comprehensive measures on employability, equality and non-discrimination, including measures to be considered by companies.

In addition, the Organic Law 1/2023, of 28 February, which amends Organic Law 2/2010, of 3 March, on sexual and reproductive health and the voluntary termination of pregnancy (the Reproductive and Sexual Health Act) introduces some new sick leave situations.

The LGBTI Equality Act

The LGBTI Equality Act incorporates comprehensive measures for the achievement of real and effective equality of the LGBTI community and for the fight against discrimination suffered by its members. These measures include public policies and mechanisms, to be implemented by companies, that significantly affect the regulation of employment relations. The provisions of this act that are detailed below entered into force on 2 March 2023.

The LGBTI Equality Act declares that any unilateral decision of companies that implies (direct or indirect) discrimination against a person of the LGBTI community on the grounds of sexual orientation and identity, gender expression, or sexual characteristics, will be null and void. To date, among other grounds of discrimination, employment regulations only prescribed the prohibition of discrimination based on sexual orientation in relation to LGBTI discrimination.

In addition, companies with at least 50 employees will need to review and adapt their equality plans to include a set of measures and resources to achieve real and effective equality for LGTBI employees, which must comprise a protocol against harassment or violence against these employees.

The Reproductive and Sexual Health Act

From 1 June 2023, women employees will be entitled to three new special situations of temporary incapacity for common contingencies:

(i) secondary incapacitating menstruation,

(ii) interruption of pregnancy, voluntary or not, that does not result from an accident at work or occupational disease, and

(iii) pregnancy of the worker from the first day of the 39th week.

Such measures are intended to ensure fair treatment of these situations in the workplace.

The Employment Act

The Employment Act, which entered into force 2 March 2023, replaces the existing provisions of 2015 and incorporates various developments of interest to companies.

First, in relation to the control of the grounds for collective dismissals, the Employment Act expands the content of the report to be issued by the Labour Inspectorate in these procedures, which must now assess the grounds for dismissal specified by companies. Until now, this report only verified the adequate start of the procedure and the development of the consultation period. The Labour Inspectorate's power of scrutiny is therefore extended, but this does not reinstate the need for the Labour Inspectorate's authorisation to carry out a collective dismissal.

On the other hand, the Employment Act introduces a significant change in the control of potential bogus self-employed individuals during a labour inspection procedure. It provides that the inspection proceedings will no longer be suspended by bringing this discussion before the courts before a final decision is made. Currently, if the labour inspectorate suspects of a self-employed person being a bogus self-employee, the inspection is suspended and the case is taken to the court to decide on the existence of the employment relationship or not. According to the Employment Act the employer will still have a chance to challenge the administrative decision of registering the relevant individual an employee, but at a later stage.

The Employment Act introduces further grounds in the prohibition of requesting certain data at the time of hiring. So it will be very serious offence, requesting data related to gender expression, gender identity or sexual characteristics . Very serious offences under Spanish labour law carry a penalty of between EUR 7,501 and EUR 225,018.