companies Companies with more than 50 employees will have to activate a complaints channel that will receive ‘tips’ about regulatory irregularities from next December 1 Corruption cases in the company according to Law 2/2023 on the Protection of Whistleblowers in Spain. The measure will affect 27,000 SMEs, which make up a large part of the Spanish business structure. Until now, the only people who had this tool to report bad practices in the corporate world were multinational corporations or companies that implemented this channel of their own accord. However, most companies will now be required to enable this tool by law. “Businessmen should perceive this as a way to anticipate violations that could jeopardize the business. And many do it this way,” says Rafael Sánchez, Compliance and Crime partner at law firm Fieldfisher. Despite the existing possibilities for the implementation of the channel, Pimec, the association of small and medium-sized companies in Catalonia, assures that this new obligation means extra costs and new efforts for entrepreneurs.
Companies will need to provide them with a computer system through which complaints can be submitted and a person who can manage them and investigate their accuracy.. “It must be an external employee or someone from within the company. In some companies this is undertaken by the person responsible for Human Resources, but we recommend that this be managed through an expert from outside the company to avoid conflicts of interest,” explains Rafael Sánchez. “The challenge for companies is to set up this system to comply with the law without requiring a large additional economic effort. Companies are taking this well, at first they saw it as another cost and requirement, but they are adapting well,” Sánchez notes.
“Although there are solutions at very affordable prices for SMEs, The reality is that channel inclusion imposes an additional cost on companiesBecause you have to allocate both monetary resources and the people responsible for managing it,” says Itziar Ruedas, legal department manager at the Pimec employers’ association. Ruedas assures that companies that already have compliance policies in place only provide assurance for the vast majority of including them “Not so much because of the cost, but due to the consequences of the allocation of specialized internal resources (the figure of the Compliance Officer rarely exists in SMEs today)” he points out.
The new law requires that the reporting channel be open not only to employees but also to third parties outside the institution.Such as customers, suppliers and even the company’s competitors. “There is no need to fear complaints. The channel can serve as a tool to anticipate problems and solve them before they cause serious damage,” says the Fieldfisher expert. Many companies offer technological solutions for the technical part and implementation of the software required for the complaint channel.
Legal issues fundamental to the operation of the channel
In addition to the computer tools and channel responsible, companies should also be responsible for designing the legal part regarding the implementation of the reporting channel. “Employees should be informed, explained what is not allowed, how to use the channel if they detect irregularities… etc…”. In case of receipt of a complaint, the company must initiate an investigation process in which it will be clarified whether there is a case of corruption or signs of crime,” explains Rafael Sánchez.
Fieldfisher’s Compliance Manager states: Some of the cases related to reporting channels he handled were issues related to occupational health and safety.. “These issues are more specific to human resources departments, but they account for 80% of the questions we receive,” says Rafael Sánchez. Other complaints relate to criticism of some company procedures. Lastly, and least commonly, violations that may have criminal consequences. “For example, a person who hires the services of a family member or an acquaintance for the company at a price above the market price in order to benefit themselves,” explains Rafael Sánchez, who assures that the channel can be used to detect frauds that occur. Further damage to the company’s framework and the company having to go to court should be avoided.
Sanctions
Companies that do not implement the complaint channel as of next December 1 may face very severe sanctions. Fines can reach up to one million euros and companies may face additional sanctions. such as being prohibited from receiving subsidies for up to four years or not being able to enter into contracts with the public sector for up to three years. “In these first months, adjustments will be made and companies will need to see if everything is working correctly. We will have to make changes as we move forward, but it is very important for companies to prepare because December 1st has already arrived,” warns Rafael Sánchez.
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“We have not yet heard about the imposition of sanctions. It should be noted that the liability for the largest companies has already been imposed for June. Although it is a paradox at the state level, the Independent Authority for the Protection of Whistleblowers has not yet been established. But despite everything, it is better to preventItziar Ruedas from Pimec’s legal department explains: “In five autonomous communities there are organizations that have at least partially taken over their functions. In Catalonia, the Catalonia Anti-Fraud Office OAC has taken over these in their entirety (transmission of the law, external channel for complaints, assistance in doubt, information registration of persons responsible for the system… and enforcement capacity ) ) ”, states Ruedas.
Ethical compliance policies within the company originate from the English-speaking business world, where they were first implemented.. Later in 2019, a European directive mandated compliance with these measures. Although each country has adapted the rules according to its own legislation, EU countries have had to transfer them to their own legislation. “Some countries have decided to accept only confidential reporting, for example, and not anonymous reporting. But in Spain both are mandatory,” concludes Rafael Sánchez.