One afternoon last Christmas, an H&M worker asked a colleague who was finishing her shift to wait for him at the ticket office, because she wanted to tell him something. To get there, they toured the second floor of the largest store that the Swedish multinational clothing company has in Spain, a building with a Chicago feel in the center of Barcelona, and within the area reserved for the staff, they left behind the blackboards of the schedules, the offices, the offices of the managers and the lockers, until arriving at the changing rooms. He asked her to come into the bathroom with him, but she refused. “Whatever you have to tell me, you can tell me in the hallway,” she told him. He wanted to kiss her, without succeeding. He then kicked a trash can. She left. “Don’t tell anyone,” he begged her.
The path that the worker undid —from the remote area, without cameras or traffic, until reaching the street, on the chamfer between Gran Vía and Paseo de Gracia— was not going to go any further. The situation had been unpleasant, but not traumatic, and she thought it was not worth reporting. Days later, she discussed it with a colleague and learned that she was not the only one of hers. She is 26 years old. “The others [dos] They were younger than me and had been with the company longer,” she said when this newspaper contacted her.
At least two other colleagues had been harassed by the same employee and in similar ways. So she changed her mind: “The moment [supe que] there were more girls and they did not report it, because they had been there longer and did not want problems with the company, I thought that there was no reason to normalize that situation”. And around the new year, she reported him to the company.
Behind her, the other two companions also denounced what until then they had kept secret. With the three complaints on the table, the first thing H&M did was require the complainants to sign a confidentiality document prohibiting them from sharing what happened with their “family or work environment”, as this newspaper already advanced. When two of them signed it, the company set up an investigation outside the protocol and legal controls.
The so-called “confidentiality agreement”, which EL PAÍS publishes in its entirety, is a document without legal coverage, secret and that treats the signatories as potential criminals in the event of sharing the facts with someone other than the “Management of the Company ”. The document expressly states that sharing any information about the case “constitutes a crime defined by the Penal Code.” “Sexually harassed and now also legally”, summarizes one of the lawyers consulted on said document.
“My father told me, ‘I wouldn’t sign it,’” she says. “It would be very important that when you arrive you sign it in person,” the H&M lawyer told him by phone. “The pressure was so great that in the end I decided not to go,” the complainant thought. And he did not go or sign. The other two companions did go. And they signed. The document defines as confidential “the mere existence of the investigation (…) as well as any (…) information in relation to it.” And it adds: “Not being able to reveal this information to any natural or legal person in your family or work environment.” No clause commits the company to anything.
The defendant no longer works at the store. But neither the investigation nor his departure have been communicated to the equality commission, according to two union sources. Officially, there has been no case of harassment at the H&M at Paseo de Gracia, 11, in Barcelona. In truth, there have been at least three.
In Spain, according to the 2019 Macro-survey on Violence against WomenMore than 8.2 million women have experienced sexual harassment at some point in their lives. 17.3% of women who have suffered sexual harassment and have answered the question about the sex of the aggressor say that the attacker was a man from the work environment.
H&M is a multinational company with a Swedish parent company with 146 stores in Spain, employing around 5,000 employees and which last year exceeded 1,000 million in profits. Present on several continents, in Latin America it has subsidiaries in Mexico, Colombia, Peru, Chile, Uruguay and Panama. H&M Global, based in Stockholm, Sweden, has declined to comment on the situation: “The case is being handled locally and we cannot comment on it.”
H&M Spain has refused to answer any specific questions. “Given that this type of document is always associated with internal investigation processes, we cannot provide more information,” replied its communication department. The lawyer and head of the Employee Relations Department of H&M in Spain, Sonia Clotet Figuerola, who has led the company’s action, has also declined to respond.
“Confidentiality agreements” are contracts between two or more parties that agree to keep certain shared information confidential. They are common in the business world, including Spain, where they are used to protect industrial secrets or certain know how business. In the case of H&M, however, they have been used to parcel out the reality of sexual harassment in the company, contradicting, as this newspaper already advanced, the spirit and letter of the law.
Federico Durán, professor of Labor Law, lawyer and director of the Garrigues Center master’s degree, considers, in general, that “it makes no sense” for a company to prohibit its employees from sharing their experiences with those around them. “That is a reserved sphere of intimacy [de la víctima]” and, as such, it cannot be parceled out, he says.
On an international scale, the investigation into the rapes and sexual assaults of the American film producer Harvey Weinstein revealed that these agreements were also used as a way to silence their victims, who in some cases were paid for their silence, according to the journalists who they uncovered the case count in she said (KO Books, 2021).
A 2018 British Parliament report, Sexual Harassment in the workplace (sexual harassment at work), showed that the practice was also common in the United Kingdom. In addition to promoting the omerta about the crimes themselves, confidentiality seeks to protect the reputation of the companies where the harassment is committed. “I find it repulsive, it’s like they only look at the image of the company,” said the first H&M complainant.
As in the cases of Weinstein and the British Parliament, H&M tried to cancel the experience of the victims. “[La abogada] It made me understand that I couldn’t say anything,” according to the first complainant.
By the end of January, the first complainant had left the company and received the document by email. She was summoned to a first interview of an “investigation” sponsored exclusively by the “Management of the Company”, in this also breaching the protocol, that for these cases provides for an investigating commission.
The H&M document and the practices investigated by the British Parliament have elements in common. The H&M workers who signed the document were not given a copy, as recognized by one of them in her environment. The report of the British Parliament concluded that this practice of denying the copy of the so-called “agreement” was “one of the most shocking aspects” in this type of practice.
There is another crucial element that surprised the authors of the British report and that also appears in the H&M Spain document. “We were particularly shocked by Zelda Perkins’s statement [una de las víctimas de Weinstein en Londres] that he feared he would ‘probably go to jail’ if he broke the terms of the agreement,” the report says. In the case of H&M, they are warned that they may incur a crime defined by “the Penal Code” and as such, subject to prison sentences.
“It is incredible that they have been able to put something like this on paper,” says lawyer Antonio Moreno Cánoves. This lawyer from Alicante represents one of the victims of pederasty in the Catholic Church revealed by the EL PAÍS investigation. His client, the religious “company” also offered to sign a “confidentiality agreement” in exchange for his silence, with the aim, they told him, of protecting “the prestige” of the Church. The client refused to sign what, for his lawyer, constitutes “a form of cover-up” of the crimes. About the H & M document, which Cánoves read at the request of this newspaper, he considers that it borders on “legal harassment”.
The two unions represented in the works council of H&M, CC OO and UGT, have not been aware of the discreet dismissal of the worker. As no employee has denounced the facts internally, they allege, the union representatives cannot act. In this sense, the complainants have compromised with the prohibition of not sharing anything with their “work environment”. The first of them, however, shared it with her family, through which this newspaper learned of the events.
“This is macabre”, summarizes Carla Vall, lawyer and author of Trenqueu in case of emergency, a book about sexist violence. “The recovery processes of the victims often go through breaking the silence: in their intimate, professional and social lives,” he adds. “When you do this [impedir que hablen], you are preventing them from recovering.” Some companies, he says, “since they know that this generates a bad image and that we are also in a historical moment in which this is in the social debate, they think that this way they can do what has always been done: silence the victims”
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