Harassment protocols and investigation procedures for internal channels in accordance with Act 2/2023
In the case under consideration, the Supreme Court concludes that a harassment protocol does not amount to a disciplinary or punitive procedure, but rather to a preliminary investigation; it therefore refuses to automatically apply all the safeguards inherent in the ius puniendi. However, it clarifies that even in this type of procedure, which is confidential by nature, the right to a defence still exists, and a minimum, effective and verifiable opportunity to be heard is required. The appeal was ultimately dismissed on a procedural ground (the failure to challenge the insufficiency of evidence), leaving the substantive issue regarding the nature of the protocol unresolved.
Applied to the business world, this criterion ties in directly with the principles of Act 2/2023: confidentiality is not merely a safeguard against reprisals, but a structural guarantee of the credibility of the whistleblowing system itself. Hence the importance of a preliminary investigation phase that allows for the documentation of the preliminary analysis of the case and the assignment of the appropriate procedure, as a case of procurement fraud is not the same as a complaint of harassment. The practical conclusion: confidentiality does not equate to a lack of transparency, and the case file must retain solid evidence demonstrating the minimum level of contradiction required by the Supreme Court.
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