Labour Law and the criminal liability of companies: questions, doubts and practical application

As is traditional, the session opened with a review by the Labour law partners Daniel Cifuentes and Fernando Ruiz of recent important judgments, in particular the judgments rendered by the National High Court in the recent collective dismissals by Indra and Vodafone, as well as by the Human Rights Court on monitoring the use of computers at work. On this occasion, Pérez-Llorca’s experts focused on evaluating the recent Circular 1/2016 of the Chief Prosecutor (which addresses the questions arising from the 2015 reform of the Criminal Code), and the impact that this may have within the labour world on the principle of extending the criminal liability of companies.

In this way, Adriana de Buerba, partner of the White Collar Crime department, presented the Prosecutor’s main clarifications on the common requirements that all companies must comply with in order to be exempt from criminal liability. In particular, she highlighted that it is advisable to use computer applications to completely control internal company procedures. In terms of internal ‘report systems’ or whistleblowing, de Buerba highlighted that the Spanish system opposes the North American system, in that complaints cannot be made anonymously. De Buerba closed her speech by highlighting the specific criteria that the Prosecutor will use to assess the models’ efficiency, particularly emphasising the existence of corporate agreements that foster work culture ethics and high ethical standards in the hiring and promotion of managers.

From a labour standpoint, Luis Fernández Pallarés focused his review on the new obligation arising from Circular 1/2016, which involves adopting internal codes of conduct that clearly establish both the duties and the prohibited behaviour applicable to company employees and managers. In particular, the partner of the Labour department posed the question of how to make codes of conduct legally binding. He recommended expressly including these codes in work contracts, with the prior consent of the workers’ representatives. Additionally, Fernández Pallarés stated that when considering codes of conduct we should refer to the law and collective agreements, given that the code is a way for management to exercise its power, and any breach of this is an act of non-compliance that may be sanctioned according to the law or contract. In this way, he stated that these codes of conduct have become a tool that is negotiated with the workers’ representatives. Lastly, he signalled that in order to comply with the provisions of Circular 1/2016, it would be equally advisable for these codes of conduct to be made available to the freelance and subcontracted employees that provide services to the companies.

Closing the session, de Buerba and Fernández Pallarés presented a guide for action in crisis situations, as well as guidelines on how to ensure that the prevention of crimes model is effective on a practical level for companies. They defined the preliminary steps to take, including the stages to follow, the factors to take into account when devising a research plan, and, where appropriate, the precautionary measures to adopt, as well as other practical aspects, overall concluding with the need to respect confidentiality and professional secrets.