Pérez-Llorca/ICADE Debate Classroom: Compliance, harassment protocols and complaints channel
Perez Llorca - Comillas Pontifical University and the Pérez-Llorca law firm held the third edition of the Pérez-Llorca/ICADE Debate Classroom on Labor Law, Compensation and Benefits.
The meeting analyzed, from a labor and criminal perspective, whistleblower channels, harassment protocols and compliance systems required by law for companies. Javier Gómez Lanz, Professor of Criminal Law at the Faculty of Law of the Universidad Pontificia Comillas (Comillas ICADE) and Iván Gayarre Conde, Partner of Labor, Compensation and Benefits at Pérez-Llorca, gave a lecture. María José López Álvarez, Professor of Labor Law and Social Security at Comillas Pontifical University School of Law (Comillas ICADE) and Luis Enrique Fernández Pallarés, Partner of Labor, Compensation and Benefits at Pérez-Llorca, participated on this occasion as moderators.
From the labor perspective, Iván Gayarre pointed out that the complaints channel, the harassment protocol and regulatory compliance are three different bodies, each with its own procedures and deadlines. In addition, he clarified that while it is not mandatory for companies to have a workplace harassment protocol, this does not exempt the investigation of these cases. "Despite the absence of a specific standard, companies have the necessary principles to carry out investigations through article 190 of the International Labor Organization (ILO) and the European framework agreement of 2007," Gayarre pointed out.
The Pérez-Llorca partner explained that, according to article 35.2 of Law 2/2023, of February 20, on whistleblower protection, no protection is granted under this law to those who report interpersonal conflicts, something that usually implies complications for the internal procedure, so he advocated outsourcing the investigation to an expert professional for the case.
For his part, Javier Gómez Lanz pointed out that, in some cases of workplace harassment, Article 173 of the Criminal Code would allow the conduct of the professional to be considered criminal and criminal liability to be attributed to the legal entity. However, the Criminal Code does not currently establish an express obligation for companies to process complaints, investigate or punish such unlawful conduct on the part of their employees. Despite the absence of a specific obligation, Gómez Lanz emphasized that it is usual for companies to get involved "not only because of an ethical commitment and corporate reputation, but also to prevent possible future liabilities".
Luis Enrique Fernández Pallarés and Iván Gayarre then discussed the legal aspects of the prosecution process. In this context, the experts stressed the importance of establishing clear limits both in terms of deadlines and the presentation of evidence. The protocol must provide for a defined period for the resolution of the investigation and, in these cases, it is essential that external investigators act with judgment and sensitivity to handle complex situations.
In criminal matters, Gómez Lanz explained that the legal and natural persons to whom the obligation to supervise and control the measures established in the compliance program is attributed run a severe risk of suffering an imputation of criminal liability for their omission in the activity of monitoring a criminal conduct that is in progress and that can be prolonged by their non-intervention. According to Gómez Lanz, delimiting this liability is complicated, since the internal investigation lacks specific regulation and its limits are set by the rights and freedoms of the worker. In short, there is no obligation and collaboration is voluntary.
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