As a result of recent reforms in both criminal and labor regulations in recent years, many of them promoted by European institutions, the role of internal whistleblowing channels has gained increasing importance in Spain.
A whistleblowing channel is a secure and confidential method (generally an email address) through which employees, customers, or third parties can report irregularities, misconduct, or regulatory breaches occurring within a company. Through this mechanism, the company can learn of these situations and take steps to correct, address, and eliminate them.
Workplace harassment is included among the types of conduct that may be reported through such channels.
In 2023, Spain enacted Law 2/2023 of 20 February regulating the protection of persons who report regulatory infringements and the fight against corruption, which transposes Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 concerning the protection of persons who report breaches of Union law (commonly known as the “Whistleblowing Directive”).
The primary objective of this regulation is to protect individuals who file reports through these channels, prohibiting any form of retaliation against whistleblowers. The goal is to encourage the use of these channels and reassure reporting persons of their reliability.
Article 3 of this Law, concerning the personal scope of application, states in its first subsection that this protection applies to informants working in either the private or public sector who have obtained information about infringements in a workplace or professional context. This explicitly includes public officials and employees working for others.
Since the purpose of the Law is to provide adequate protection against retaliation for those reporting violations, it is clear that workers who file workplace harassment complaints are protected from employer reprisals. In this context, the most significant aspect of the guarantee of indemnity is the fear of potential dismissal due to filing the complaint.
Consequently, in accordance with current legislation, dismissal of a worker as the direct result of exercising their labor rights (in this case the right to report harassment) implies that the dismissal is null and void, with the inherent consequences: (i) reinstatement of the worker, (ii) payment of back wages from the date of dismissal until reinstatement, and, very likely, (iii) the right to receive compensation from the company for damages suffered.
Since dismissal is the most drastic form of retaliation, the guarantee of indemnity also protects the worker from retaliatory actions such as unfavorable changes to working conditions: salary reductions, elimination of previously recognized benefits, or downgrading of duties or job positions.
Given the above, this protection raises a controversial issue: How far does whistleblower protection extend? What happens in cases of clearly false reports?
In this regard, the Preamble to the Law itself gives a clue: “Good faith, the honest belief that serious harmful events have occurred or may occur, constitutes an essential requirement for the protection of the informant. This good faith reflects civic behavior and must be distinguished from other conduct that must necessarily be excluded from protection, such as sending false or distorted information, as well as information obtained unlawfully.”
Therefore, based on the literal wording of the Preamble, if a worker files a harassment complaint against a coworker based on events that are false and did not occur, and does so driven by malicious intent toward the coworker, the guarantee of indemnity will not apply.
Nonetheless, even if the guarantee of indemnity does not apply in such circumstances, companies have faced uncertainty regarding the ability to take disciplinary action against a worker who knowingly files a false complaint.
Courts have begun to allow companies to impose sanctions (including dismissal) on workers who knowingly submit false complaints.
A relevant example is a recent judgment of the High Court of Justice of La Rioja (Section 1) of 28 July 2025, No. 106.
The case concerned a disciplinary dismissal imposed by a company on a worker who had filed a fraudulent and disloyal complaint, knowing the accusations against a colleague were false. Following the company’s investigation, manifest bad faith in the complainant’s behavior was established.
In his appeal to the High Court of Justice, the worker sought annulment of the dismissal, relying precisely on the guarantee of indemnity supposedly afforded by the aforementioned legislation, arguing that the dismissal was based on the mere exercise of his right to report a coworker.
However, the Court ruled that the reason for the dismissal was not the act of reporting, but rather the falsity of the report. It concluded that “the dismissal is clearly lawful and simultaneously refutes the allegation of violation of the guarantee of indemnity (Article 24.1 of the Spanish Constitution), since there is no retaliatory conduct by the employer, but rather a justified and proportionate exercise of disciplinary authority in response to the worker’s serious misconduct in falsely accusing a colleague.”
Specifically, it states that “There is no business decision based on the mere fact of the report, but rather on the content of the report, the intent of the complainant, and the lack of justification, since the reported events did not occur, which due to its seriousness justifies the sanction of dismissal and, at the same time, excludes the alleged infringement of indemnity.”
Therefore, the Court confirmed the lawfulness of the disciplinary dismissal imposed by the company, allowing the worker’s bad faith in falsely accusing a coworker to serve as cause for dismissal.
This ruling logically interprets the regulation and enables the application of disciplinary measures against workers who knowingly file false workplace harassment complaints.
Further decisions from other courts, including the Supreme Court, are awaited. However, it appears that the limits of the guarantee of indemnity in cases involving false harassment complaints are being defined in this sense, which is welcome since the message should be clear that “not everything goes.”
- An “exposición de motivos” is the preliminary text accompanying a law that justifies the reasons, context, and objectives behind it, and explains why the new regulation is required, detailing the social, political, and economic problems it seeks to address.