Anti-Harassment Protocol & Compliance Lawyer

The Mandatory Anti-Harassment Protocol

Since Organic Law 3/2007 on the effective equality of women and men, reinforced by Organic Law 10/2022 and Law 15/2022, every Spanish company must implement protocols to prevent and act against sexual harassment and harassment on grounds of sex. The absence or insufficiency of the protocol can generate criminal liability for the employer by commission by omission, plus administrative sanctions and serious labour consequences.

Article 48 of LO 3/2007 requires companies to promote working conditions that prevent harassment, to set up specific procedures for prevention and for channelling complaints, and to negotiate concrete measures (codes of conduct, training, awareness campaigns). A minimum protocol must include precise definitions, a zero-tolerance statement, a confidential internal reporting channel (aligned with Law 2/2023), an investigation procedure with safeguards, precautionary measures, an internal sanctioning regime, mandatory training and protection against retaliation.

Employer Liability by Omission

Where an employee commits sexual harassment and the company had no protocol or did not apply it correctly, the employer or directors may be investigated for commission by omission under Article 11 CP. The requirements are a position of guarantor derived from the legal and contractual duty to prevent harassment, an effective capacity to act, actual or required knowledge of the risk, and an omission equivalent to the positive act.

Legal-Person Liability and Compliance

Article 31 bis CP allows the criminal liability of the legal person for offences committed on its behalf. An adequate criminal-prevention model, integrating the anti-harassment protocol, can operate as an exemption or mitigation. The protocol must be properly dovetailed with the company's criminal-compliance model.

Administrative and Labour Consequences

Beyond the criminal sphere, failing to prevent harassment is a very serious infringement under the LISOS (Royal Legislative Decree 5/2000), sanctioned by the Labour Inspectorate. The labour consequences may include the null dismissal of a victim who is retaliated against, with reinstatement and enhanced compensation; the company's joint and several liability for the harm caused by its employees; and, in particularly serious cases, debarment from public contracts.

Defense Strategy

1. Proving the protocol exists and was effectively applied to the specific case.
2. Diligence in the internal investigation and immediate precautionary measures on becoming aware of the facts.
3. Integration of the protocol into the company's criminal-compliance model.

The company protocol as a legal duty: Article 48 of LO 3/2007 and its interlock with criminal compliance

Every company, whatever its size or sector, is bound by Article 48 of Organic Law 3/2007 on equality to promote working conditions that prevent sexual harassment and harassment based on sex, and to put in place specific procedures both for prevention and to channel the complaints or claims of those who have suffered it. This is neither a recommendation nor a voluntary best practice: it is an enforceable mandate that takes shape as a written protocol setting out awareness, detection, internal investigation and, where appropriate, disciplinary measures. Failure to comply triggers its own administrative liability within the employment sphere, separate from any criminal proceedings.

From the standpoint of corporate defence, that protocol is not a stand-alone document: it fits naturally within the organisation and management model of Article 31 bis of the Criminal Code. Since legal persons were brought within the scope of sexual harassment, an operational reporting channel, a serious and diligent internal investigation, and a proportionate reaction to early signs are precisely the supervision and control measures that Article 31 bis requires for the entity to be exempt from liability. A well-designed protocol that is, above all, genuinely applied is the company's best preventive tool against criminal risk.

Procedure, competent court and the boundaries between the internal, administrative and criminal planes

It helps to separate three planes that are often confused. The internal plane is that of the company protocol: a confidential investigation, with short timeframes, guarantees of confidentiality and respect for the presumption of innocence of the person named, which may end in organisational or labour-disciplinary measures, never in a penalty. The administrative-labour plane belongs to the Labour Inspectorate and the social jurisdiction, where consequences within the employment relationship are decided. The criminal plane is reserved for facts that fit the offence of sexual harassment under Article 184 of the Criminal Code and is handled before the investigating court of the place of the events, with later referral to the competent trial body.

These planes are compatible and may run in parallel, but they answer to different standards. An adverse internal conclusion is not a conviction, and the absence of a disciplinary measure does not bar criminal prosecution. For the defence it is decisive to delimit from the outset which plane is in play, what evidential weight material gathered in the internal investigation will carry in the criminal venue, and how the chain of custody of emails, messages and access logs was preserved. Coordinated work between employment and criminal counsel avoids hasty decisions that compromise rights on either track.

The consent framework after LO 10/2022, evidence, and the qualified prescription for minor victims

The reform of sexual freedom placed consent at the centre of adjudication: it must be freely given and expressed through acts that convey it clearly, which in the context of Article 184 bears on the assessment of the objectively and seriously intimidating, hostile or humiliating situation that the offence requires. Evidence is usually built on the complainant's testimony, weighed by criteria of persistence, credibility and absence of ulterior motives, reinforced by corroborating elements: reference witnesses, digital evidence of messages and logs, medical or expert reports and, where appropriate, toxicology testing where there are signs of chemical submission. The defence scrutinises with technical rigour the manner of obtaining and the authenticity of each element.

On prescription, a special rule applies that should be anchored precisely. Article 132.1 of the Criminal Code, following Organic Law 8/2021, provides that in offences against sexual freedom and indemnity committed against minor victims the limitation period does not begin to run until the victim reaches the age of thirty-five, this rule applying to acts committed from its entry into force. Outside that case, prescription is governed by the general periods of Article 131 according to the penalty for the specific offence. Correctly fixing the dies a quo is often the first line of defence.

Associated consequences, reparation and routes to a negotiated plea

Beyond the principal penalty, a conviction for offences against sexual freedom carries consequences that must be anticipated. Article 192 of the Criminal Code provides for the supervised release measure, executed after the prison sentence is served, lasting longer for serious offences and shorter for less serious ones, and capable of being modulated where a first-time offender presents lesser dangerousness. To this is added the entry of the convicted person's data in the Central Registry of Sex Offenders, with significant effects on access to professions involving regular contact with minors, together with the specific disqualifications the offence itself contemplates. These are consequences worth weighing from the very start of the strategy.

Reparation of the harm, where it is genuine and early, operates as a mitigating circumstance and as a way to humanise the process; alongside it, the modifying circumstances, aggravating or mitigating, are weighed case by case. A negotiated plea is a route to explore whenever it reflects a calm analysis of the evidence and the client's interest, never as a shortcut. And the boundary with neighbouring offences must be drawn carefully, because not every inappropriate conduct at work amounts to a crime: many behaviours remain on the disciplinary or administrative plane. Distinguishing precisely which fact integrates the criminal offence and which belongs to another sphere is the core of defence work.