The role of human resources in the criminal liability of legal entities. Part 2
One of the big breakthroughs in the recent Organic Law 1/2015, of March 30, 2015, on the criminal liability of legal entities, was the specific description of how to interpret fulfillment of the duties of supervision, monitoring and control. So companies can protect themselves against the types of criminal liability mentioned when they have in place Compliance Plans or Corporate Crime Deterrence Protocols (similar to the Occupational Risk Prevention Plans in the labor and employment practice area).
Now however, Circular no. 1/2016 of the Spanish public prosecution service has determined that these Protocols (as also occurred with the interpretation made by the Spanish labor and social security inspection authority of Occupational Risk Prevention Plans) must be specific, detailed and effective for deterring the criminal offenses. On this subject, the public prosecution service has taken up the task of highlighting that merely having in place a general plan, not tailored to the company’s real circumstances, and not implemented with sufficient resoluteness, will not release the company from liability for the criminal offenses committed from within it, on the terms described in article 31 bis of the Spanish Criminal Code.
As far as human resources are concerned, in Circular no. 1/2016 the Spanish public prosecution service sets out, among others, the following guidelines for fulfilling the duties of supervision, monitoring and control and thereby heading off the types of criminal liability we have been looking at:
- The existence at the company of a code of conduct clearly setting out the obligations of managers and employees.
- The obligation to have in place an adequate disciplinary system requiring action against employees for breach of the measures adopted in the Compliance Plan.
- The having in place of whistleblowing channels for internal breaches or unlawful activities on a mandatory basis for employees, for which they will have to satisfy certain requirements.
- The existence of a decision-making procedure that ensures high ethical standards, particularly in the hiring and promotion of managers and in the appointment of members of managing bodies.
It has been mentioned in the most recent court case precedents (a good example is the judgment of the Criminal Chamber of the Supreme Court of February 29, 2016) that the regime on the criminal liability of legal entities is one of the topics of the moment for companies, and hence, for human resource management, in that the implementation of Corporate Compliance has now become an inescapable obligation for all legal entities.
And to close by replying to the title of this post, it may be concluded that human resources play such an important role in the criminal liability of legal entities that the first judgment by the Criminal Chamber of the Supreme Court on this subject reduced a sentence of dissolution of the legal entity imposed by the lower court by reason of the number of employees that this sentence would affect.
For more information on this subject, take a look at the first part of the post, which specifies some of the criminal offenses for which legal entities may be held liable.
Garrigues Labor and Employment Department