Implementation of the Equality Plan in Companies
Royal Decree-Law 6/2019 of 1 March and Royal Decree 901/2020 of 13 October established and updated the different commitments to be adopted when preparing Equality Plans in companies, following the amendment of Organic Law 3/2007.
The main feature of these decrees is that they establish the employer’s obligation to prepare an Equality Plan for companies with 50 or more employees, without prejudice to the possibility that a collective bargaining agreement may require such a plan for companies with a smaller workforce. An Equality Plan must also be prepared where the Labour Inspectorate replaces a sanction for sex-based discrimination with the obligation to implement such a plan.
In summary, an Equality Plan is a document that includes the measures the company must implement to achieve equal treatment and equal opportunities between men and women, with the aim of eliminating sex-based discrimination.
All companies are required to respect equal treatment and equal opportunities in the workplace, and to adopt measures aimed at preventing workplace discrimination between women and men [Organic Law 3/2007, Article 45.1]. Therefore, even where there is no obligation to prepare an Equality Plan, having one may be a good way to justify to the Labour Inspectorate the measures adopted by the company in the event of an inspection. If the company is not required to have an Equality Plan, it will comply with the law if it has a harassment protocol in place.
The Equality Plan must cover all employees of the company and the implementation process must begin within a maximum period of three months after the company reaches the workforce threshold that makes it mandatory. In addition, the Equality Plan must be negotiated with employee representatives [Organic Law 3/2007, Article 45.1], in compliance with the requirements laid down in the Workers’ Statute for the negotiation of collective agreements [Supreme Court, 09-05-2017].
Its implementation will consist of three phases:
1. Prior negotiated diagnosis
The prior diagnosis must be negotiated with the trade union representation or, where there is none, it is the employer’s responsibility to prepare it.
This diagnosis must cover at least the following areas: recruitment and hiring processes, professional classification, training, professional promotion, working conditions, including the pay audit between men and women, co-responsible exercise of rights relating to personal, family and working life, female underrepresentation, remuneration, and the prevention of sexual and sex-based harassment.
2. Preparation of the diagnosis
This will be carried out through the creation of a Negotiating Committee for the Equality Plan, made up of representatives of the company and the employees. The company must provide all the data and information necessary for its preparation, including the pay register referred to above.
3. Preparation and implementation of the Plan
The Plan must set out the specific objectives to be achieved through its implementation, define the strategies and practices to be adopted to meet those objectives, and establish an evaluation and monitoring system to assess whether they are being achieved as planned.
Within a maximum period of one year from the end of the above-mentioned deadline for initiating the procedure, the Plan must be negotiated, approved and registered. The period of validity of the Plan, which will be determined by the negotiating parties, may be up to four years.
For this purpose, and as a control measure, there is a Register of Company Equality Plans (REGCON), which forms part of the Registers of collective bargaining agreements and collective labour agreements, where registration is mandatory.
If a company is required to prepare an Equality Plan and fails to comply with this obligation, it will be deemed to have committed a very serious infringement [LISOS, Article 8.17], punishable by a fine of between EUR 7,501 and EUR 225,018 [LISOS, Article 40.1.c].
In addition, it should be noted that Royal Decree-Law 1/2023 has established, among other measures, the obligation for companies required to have an Equality Plan due to their number of employees or other reasons to have the corresponding Plan prepared and registered in order to access any incentives or reductions in Social Security contributions.
