On 14 July 2022, the new law came into force, the main object of which is to prevent, deal with and eliminate any possible channel of discrimination in Spain. Moreover, as could not be otherwise, several of its provisions are directly applicable to the labour field, as we specify and briefly explain below:
Act 15/2022 includes new reasons for discrimination and creates new types of discrimination.
One of the legislator’s main objectives was to expand the range of reasons for which no discrimination can be made against anyone, whatever field such person may be in.
Therefore, in addition to the reasons already applicable (gender, racial or ethnic origin, disability, age, religion or beliefs and sexual orientation) the new regulation includes other elements of non-discrimination. Specifically, they are those caused by illness or a health condition, serological status and/or genetic predisposition to suffer illnesses and disorders, language, socioeconomic situations or any other personal or social situation or circumstance.
Moreover, there are also new definitions of the types or kinds of discrimination that, as defined by the regulation, could acquire certain importance in the world of labour relations. We refer to the following:
- Discrimination by association (when a person or group to which a person belongs, due to his/her relationship with another person who is affected by any of the reasons included in section one of Article 2 of the same law) and discrimination by error (incorrectly considering the characteristics of the discriminated person or persons).
- Multiple discrimination (when there is discrimination against a person simultaneously or consecutively for two or more reasons included in Act 15/2022) and intersectional discrimination (when there are different reasons occurring or interaction between those included in this law, creating a specific form of discrimination)
This also occurs with the definition provided on discriminatory harassment and the field of reprisals, since both of them can also easily occur in a relationship between a worker and a company.
Chapter II of the law: The right to equal opportunities and non-discrimination in certain fields of political, economic, cultural and social life
Moreover, the legislator has also decided to specify situations in the social and employment field in which under no circumstances may workers be restricted, separated or excluded for any of the discriminatory reasons included in this law.
In this respect, no discrimination may be made against a worker in recruitment processes to public or private employment, imposing an obligation on the employer that it is unable to ask the job candidate about his/her health condition.
The same happens in other fields, such as job training, professional promotion, remuneration, working hours and other working conditions as well as the suspension of the employment contract, dismissal and other reasons for terminating the employment contract, job criteria and recruitment systems also being protected or working conditions that cause situations of indirect discrimination.
Other issues that show the importance of this section being converted into a duty that the law imposes to ensure respect of the rights to equal opportunities and no indirect discrimination by public employment services, their collaborating placement institutions and agencies and authorised institutions. This obligation is also imposed on the Work Inspection Unit that, in this case, must ensure this in its own job recruitment process and working conditions for its employees. It also includes development of specific plans for equal opportunities and non-discrimination in job recruitment and working conditions in its annual integrated action plan.
Moreover, collective bargaining also plays an important role in order to eradicate any trace of discrimination, since holding such process promotes the measures for positive action to prevent, eliminate and correct all forms of discrimination in the field of employment and working conditions for the reasons included in Act 15/2022.
Procedural law also plays a leading role
Act 15/2022 is also aimed at clarifying issues related to judicial proceedings. Specifically, it does so by determining the rules governing the burden of the proof, highlighting something that has already been included in other regulations: When the plaintiff or the person concerned alleges discrimination and submits prima facie evidence with due grounds about its existence, the defendant or the one against whom the discriminating situation is claimed must provide sufficiently proven objective and reasonable justification of the measures adopted and their proportionality. In other words, the situation arises that in procedural law we call the reversal of the burden of the proof.
The Labour Infringement and Penalty Act (LISOS) continues to be applicable regarding infringements and penalties within a labour scope.
Lastly, it is also interesting that, in the case of infringements and penalties related to equal opportunities and non-discrimination, Act 15/2022 stipulates that, within a labour scope, the applicable system will be regulated by the Labour Infringement and Penalty Act, according to the redrafted text approved by Legislative Royal Decree 5 of 4 August 2000. Regarding disabled persons, the provisions in the Redrafted Text of the General Act on Disabled Persons and their Social Inclusion, approved by Legislative Royal Decree 1 of 29 November 2013, will be applicable.
Do not hesitate to contact any of our attorneys specialised in labour law at RSM Spain, should you have any doubts about the contents of this new Act 15/2022 and we will be delighted to help you.