LGBTI harassment prevention protocol

The LGBTI harassment protocol is an easy and useful way to comply with the legal obligation for all companies with more than 50 employees to have a protocol for the prevention of harassment of LGBTI individuals, as required by the Trans and LGBTI Law.

Likewise, the protocol is an agile means of preventing and acting in cases of moral and/or sexual harassment.

It can also serve as an operational measure when implementing an equality plan. For more information on the Equality Plan, click on this link.

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What does the legislation say about the LGBTI Protocol?

Royal Decree 1026/2024 establishes obligations with regard to:

To whom the LGBTI Protocol applies:

1. To all those companies that have more than fifty employees on their staff, mandatorily.

2. The negotiation of the planned measures will be voluntary for companies with fifty or fewer employees.

3. The planned measures of the user company shall be applicable to temporary agency workers.

4. The action protocol against harassment and violence towards LGTBI individuals shall apply to third parties working in the company, regardless of the legal relationship between them and the company, as long as they carry out their activity within the organizational scope of the company. It shall also apply to job applicants, agency staff, suppliers, clients and visitors, among others.

The number of employees shall be the total workforce of the company (regardless of the number of workplaces / type of employment contract).

It will be mandatory for Collective Bargaining Agreements (Convenios Colectivos) to negotiate the LGBTI harassment protocol.

How should I negotiate the LGBTI protocol?

From 09/01/2025 it is mandatory for the affected companies (those with more than 50 employees) to convene a negotiating board (mesa negociadora).

The parties referred to in Article 87 of the Workers' Statute shall be entitled to negotiate:

• the works council (el comité de empresa),
• the personnel representatives (los delegados de personal), if there are any,
• or the trade union sections (las secciones sindicales), if there are any, which together make up the majority of the members of the council.

If they do not exist, we proceed in the same way as in the case of Equality Plans:

• A negotiating committee will be created, made up, on the one hand, of representatives of the company and, on the other hand, of representatives of the workers, which in turn will be made up of the most representative trade unions and the trade unions that are representative in the sector to which the company belongs. The negotiating committee will have a maximum of six members for each of the parties and the union representation will be formed in proportion to the representativeness of each organization in the sector.
• Without prejudice to the foregoing, the labour section of this negotiating committee shall be validly composed of the trade union organisation or organisations that respond to the company's formal notification within ten working days, which may be extended by another ten working days if no response is received within the first period. If no response is received within this new period, the company may proceed unilaterally to determine the planned measures in accordance with the contents of the Royal Decree.
• If there are workplaces with legal employee representation and workplaces without it, the labour section of the special negotiating body shall be made up, on the one hand, of the legal representatives of the employees of the workplaces that have it and, on the other hand, of members of the labour section, constituted in accordance with the previous paragraphs of this section, representing the employees of the workplaces that do not have it. In this case, the negotiating committee shall be made up of a maximum of thirteen members for each of the parties; the labour party and the employer party.

Do you need help from our employment lawyers to formalise the agreement and the protocol?

How should I reach an agreement on the LGBTI protocol? 

The LGBTI agreement will be structured with, at least, the following components:

1. Determination of the negotiating parties.
2. Personal, territorial and temporal scope of application.
3. Procedure for resolving possible discrepancies that may arise in the application and interpretation of the agreed planned measures.
4. A protocol against harassment and violence in which preventive practices and mechanisms for detecting and acting against harassment and violence are identified.

Minimum content of the LGBTI agreement:

1. Equal treatment and non-discrimination clauses: equal treatment and non-discrimination clauses that contribute to creating a context which favours diversity and progress in the eradication of discrimination against LGTBI individuals, with express reference made not only to sexual orientation and identity but also to gender expression and sexual characteristics.
   1. especially through the adequate training of the people who participate in the selection processes.
   2. Establishing clear and specific criteria to guarantee an adequate selection and hiring process that prioritises the training or suitability of the person for the job, regardless of their sexual orientation and identity or gender expression, with special attention to trans people as a particularly vulnerable group.Access to employment: Measures to eradicate stereotypes as regards access to employment for LGBTI individuals:
2. Classification and professional promotion: In a way that does not entail direct or indirect discrimination for LGBTI individuals, based on objective factors (including those of qualification and ability), guaranteeing the development of their professional careers under equal conditions.
   1. Criteria for classification,
   2. Criteria for horizontal promotion (promoción profesional),
   3. Criteria for vertical promotion (ascenso). 
3. Training, awareness and language: 
   1. Measures will be promoted to ensure the use of diversity-friendly language.
   2. In their training plans, companies will include specific modules on the rights of LGBTI individuals in the workplace, with special emphasis on equal treatment and opportunities and non-discrimination. The training shall be aimed at the entire workforce, including middle management, management positions and workers with responsibility for personnel and human resources management. The minimum aspects to be covered are:
      1. General knowledge and dissemination of the set of planned LGBTI measures included in the collective bargaining agreement(s) applicable in the company or the company agreements, if applicable, as well as their scope and content.
      2. Knowledge of the definitions of and basic concepts regarding sexual, familial and gender diversity contained in Law 4/2023, of 28 February, for the real and effective equality of trans people and for the guarantee of the rights of LGBTI individuals (Ley 4/2023, de 28 de febrero, para la igualdad real y efectiva de las personas trans y para la garantía de los derechos de las personas LGTBI).
      3. Knowledge and dissemination of the protocol for accompanying transgender people in employment, if such a protocol is in place.
      4. Knowledge and dissemination of the protocol for the prevention, detection and action against discriminatory harassment or violence based on sexual orientation and identity, gender expression and sexual characteristics.
4. Diverse, safe and inclusive work environments: The heterogeneity of workforces will be promoted in order to achieve diverse, inclusive and safe work environments. To this end, protection against LGBTI-phobic behaviour will be ensured, especially through protocols against harassment and violence at work.
5. Leave and employee benefits: 
   1. They should address the reality of diverse families, LGTBI spouses and civil partners, guaranteeing access to leave, employee benefits and rights free of discrimination on grounds of sexual orientation, sexual identity or gender expression.
   2. All workers shall be guaranteed the equal enjoyment of any leave established in collective contracts or collective bargaining agreements for the purpose of attending medical appointments or legal procedures, with special consideration for transgender individuals.
6. Disciplinary regime: Offences and penalties for behaviour that infringes on the sexual freedom, orientation and identity or gender expression of workers shall be included, where appropriate, in the disciplinary regime regulated in collective bargaining agreements.