LGBTI Plans: Keys to their implementation

On 2 March 2024, Spanish companies with more than 50 employees will be obliged to comply with the new obligations established by article 15.1 of Law 4/2023, of 28 February, for the real and effective equality of trans people and for the guarantee of the rights of LGTBI people (hereinafter, the "LGBTI Law"). Specifically, these companies must have:

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1. A planned set of measures and resources to achieve real and effective equality for LGBTI people, the so-called "LGBTI Plan"; and
2. A protocol for dealing with harassment or violence against LGBTI people, which must be included in the aforementioned Plan.

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However, the content and scope of these specific measures are still subject to regulatory development barely two weeks before they come into force, which is a source of uncertainty and concern for companies that must now face up to their implementation.

In this context, the first meeting between the government and the unions was held on Tuesday 13 February to discuss this regulatory development, and although it is reported that there seems to be a certain consensus on the content of the regulation (although still without the participation of the employers' organisations) and on the need for rapid negotiations, the government has already stated that it will not be published before 2 March 2024.

As a result, companies are facing these new employment obligations "blindly". The aim of this article is to clear up any doubts they may have in this regard. To this end, we have consulted the General Directorate for Real and Effective Equality of LGBTI+ People of the Spanish Ministry of Equality, which has responded to many of the doubts that have been raised in recent weeks, taking clear inspiration from the existing provisions of the Equality Plans and the regulatory development carried out by Royal Decree 901/2020 of 13 October.

1. What is the deadline for implementing LGBTI Plans in Spanish companies?

The deadline for having an LGBTI Plan is 2 March, regardless of the fact that the regulatory development has not yet taken place.

2. What should the LGBTI Plans contain?

As with Equality Plans, it is recommended that LGBTI Plans include the following content:

• Diagnosis of the situation of LGBTI people in the company.
• Objectives of the LGBTI Plan.
• Design of measures to alleviate the deficiencies identified and to ensure equality and non-discrimination of LGBTI people.
• Indicators for monitoring and evaluation.
• Timetable for the application, implementation, evaluation and updating of the LGBTI Plan.

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3. How can companies carry out the diagnosis of the LGBTI Plan?

One of the main concerns of companies regarding the diagnosis is how to make this obligation compatible with the personal data protection regulations and with the Law on Infractions and Sanctions in the Social Order, since sexual orientation, gender identity, gender expression or sexual characteristics are specially protected data.

However, the diagnosis can be carried out by other means that allow the situation of LGBTI employees to be assessed, such as:

• Analysis of existing policies and protocols in the company (selection and promotion policies, inclusive communication, training, harassment protocols, etc.).
• Examining possible harassment situations, incidents or conflicts that may have occurred in the company in the past (e.g. cases of homophobia, transphobia, biphobia, etc.) and how they were resolved.
• Working conditions, such as trans-inclusive bathroom policies or gender-specific dress codes.
• Co-responsibility measures and work-life balance, such as specific measures for same-sex couples.
• Circulation of an anonymous survey to the workforce to find out about the situation of the LGBTI collective in the company.

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4. In the absence of regulatory development, is it necessary for LGBTI plans to have the previous content?

In the absence of regulatory development, many companies are tempted to implement plans with the minimum possible content to comply with the regulation, given the approaching date of entry into force and the current lack of definition.

However, it would be advisable to comply with the above as much as possible, not only because of the differentiating opportunity for companies to implement these types of policies and measures aimed at achieving real and effective equality for LGBTI people and managing diversity in their organisation, but also to anticipate and adapt to foreseeable regulatory developments.

In this regard, it is very likely, as the Directorate General for Real and Effective Equality of LGBTI+ People indicated in our consultation, that in the future these plans will have to be registered in REGCON (the Spanish Register of Collective Agreements and Collective Bargaining Agreements), as is already the case for equality plans. Therefore, if the content of the plans is not in line with the content of the future regulation, it is likely that registration will be prevented without an adaptation of the plan, which will mean new efforts and commitments for companies.

Thus, many will remember the one-year period established by Royal Decree 901/2020 of 13 October for the adaptation of the Equality Plans to the evolution of the regulation, obliging companies to carry out a complete review of their plans and to return to the negotiation tables.

Therefore, given the inspiration that the regulations on Equality Plans will have on the future regulation of LGBTI Plans, the most advisable thing for companies to do is to come as close as possible to the aforementioned.

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5. Can the Equality Plan and the LGBTI Plan be combined in a single document?

This has been a much debated question, but in principle, as confirmed by the Directorate General for Real and Effective Equality of LGBTI+ People, it would be possible to unify them.

However, it is still necessary to carry out a diagnosis, implementation and monitoring of the measures and resources that are specific and differentiated from those foreseen in the Equality Plan.

6. Does this LGBTI Plan need to be negotiated? What happens if there are no employee representatives in the company?

Yes, the LGTBI Plan must be negotiated, a simple consultation is not enough. In this sense, art. 15.1 of the LGTBI Law explicitly states that "the measures will be agreed through collective bargaining and agreed with the legal representation of workers".

In this regard, the Directorate General for Real and Effective Equality of LGBTI+ Persons has confirmed that it is not possible to draw up the LGBTI Plan unilaterally without the presence of workers' representatives.

Similarly, in the absence of workers' representatives, it is indicated that it would not be possible to set up an "ad hoc" committee made up of the workers themselves, but rather, with direct reference to the regulations on equality plans, that the trade unions of the sector to which the company belongs should be invited to the negotiations.

Notwithstanding the above, the Ministry of Equality is aware of the "collapse" of trade union participation in the negotiation of equality plans (which is expected to increase with the new LGBTI plans) and therefore, being aware of the recent rulings of our courts which have recognised the possibility of registering equality plans when trade unions refuse or do not respond to the invitation to negotiate, the possibility of setting up an "ad hoc" commission in such cases is accepted.

The content of the future regulatory development is uncertain at the moment, which is why companies should be well advised when implementing and negotiating LGBTI plans, especially given the possibility that they may be required as social clauses in public contracts or even as a condition for receiving incentives and social security benefits, as is already the case with equality plans (art. 71.1.d of Law 9/2017, of 8 November, on Public Sector Contracts and art. 8.e of Royal Decree-Law 1/2023, of 10 January).

At ABDóN PEDRAJAS | LITTLER we are at your disposal for any advice, support or technical assistance you may require.

You can find the Spanish version of this article at the following link.