Offences against workers' rights (delitos contra los derechos de los trabajadores): types, penalties and company liability

Offences against workers’ rights (delitos contra los derechos de los trabajadores) are those that protect the minimum conditions that must be respected in any employment relationship: pay, working hours, registration and contributions with Social Security, freedom of association, the right to strike, equality and safety at work.

Not every breach of employment law constitutes a criminal offence. Many irregularities must be resolved through an employment claim or an administrative penalty. Criminal proceedings are reserved for particularly serious conduct, carried out with the elements required by each offence.

In particular, the offence of imposing harmful working conditions requires deception or abuse of a situation of need; a breach of contract or an employment dispute is not enough on its own.

Imposing unlawful working conditions

This offence is committed by anyone who, through deception or by abusing their workers’ situation of need, imposes on them working or Social Security conditions that prejudice, remove or restrict rights recognised by law, the collective agreement or the employment contract.

This may involve, for example, imposing clearly unlawful working hours, rest periods, pay or Social Security conditions by taking advantage of a vulnerable situation that leaves the worker with no real alternative. The conduct may also occur in a transfer of undertaking where the party acquiring the business is aware of the unlawful conditions previously imposed and decides to maintain them.

The penalty is imprisonment of six months to six years and a fine of six to twelve months (day-fine system). If violence or intimidation is used, the penalties of the next higher degree are imposed.

Employing workers without Social Security registration or a work permit

The same article provides for a specific form of the offence for anyone who simultaneously employs a number of workers without notifying their registration with Social Security or without obtaining the necessary work permit. For an offence to exist, certain percentages of the workforce must be exceeded:

• at least 25% in companies or workplaces with more than 100 workers;
• 50% in those with more than 10 and up to 100;
• the entire workforce where there are more than 5 and up to 10 workers.

It also applies where foreign workers are employed without the necessary permit.

Illegal trafficking in labour and fraudulent recruitment

Illegal trafficking in labour is punishable where someone acts as an intermediary or unlawfully deals in workers, to the detriment of their employment rights. The penalty is imprisonment of two to five years and a fine of six to twelve months.

The same penalty applies to anyone who recruits people or induces them to leave their job by means of deceptive or false job offers or working conditions. It is also an offence to employ foreign nationals without a work permit under conditions that prejudice, remove or restrict the rights granted to them by employment legislation, the collective agreement or the contract.

Emigration through false employment contracts

This offence is committed by anyone who brings about or facilitates a person’s emigration to another country by using a sham contract or placement, or by similar deception. The penalty is the one laid down for illegal trafficking in labour: imprisonment of two to five years and a fine of six to twelve months.

The false contract does not necessarily have to be performed. It is sufficient that the deception is used to bring about or facilitate the person’s emigration.

Serious discrimination in employment

Serious discrimination in employment, whether public or private, is punishable where it is based on grounds such as ideology, religion, beliefs, family situation, national origin, race or ethnicity, sex, age, sexual orientation or sexual or gender identity, gender-based reasons, aporophobia, social exclusion, illness, disability, acting as a legal or trade union representative, kinship with other workers or use of an official language.

For an offence to exist, in addition to the discrimination being serious, equality must not have been restored following an administrative demand or penalty, and the financial damage caused must not have been made good.

The penalty is imprisonment of six months to two years or a fine of twelve to twenty-four months.

Obstructing freedom of association and the right to strike

It is an offence, through deception or abuse of a situation of need, to prevent or restrict the exercise of freedom of association or the right to strike.

The penalty is imprisonment of six months to two years or a fine of six to twelve months. If coercion is used, the penalty becomes imprisonment of one year and nine months to three years or a fine of eighteen to twenty-four months.

The protection covers both the individual decision whether or not to join a trade union and participation in trade union activities and the lawful exercise of the right to strike.

Offences against workers’ health and safety

This offence is committed by anyone who, in breach of occupational risk prevention rules and being legally obliged to do so, fails to provide the means necessary for workers to carry out their activity with appropriate health and safety measures, provided that this places their life, health or physical integrity in serious danger.

The penalty is imprisonment of six months to three years and a fine of six to twelve months. No accident or injury needs to occur: it is enough to create a serious and specific danger for the workers.

Liability may extend to those who have real decision-making power and are obliged to:

• organise risk prevention;
• provide adequate equipment and means;
• give the necessary training;
• prevent work being carried out in dangerous conditions.

It may also extend to supervisors or those in charge of the department where they were aware of the situation and could have remedied it.

This offence may be committed through gross negligence, punishable by the penalty of the next lower degree. The other offences against workers’ rights have no general negligent form: they require the intentional elements specific to each offence.

Can the company be held criminally liable for offences against workers?

A specific regime applies to these offences. The company is not convicted as a principal under the general regime of corporate criminal liability. Where the acts are attributed to a company, criminal liability falls on the directors or managers in charge who were responsible, and on those who, knowing of the acts and being able to remedy them, failed to take the necessary measures.

Liability does not depend solely on formal position. It may extend to anyone who had effective management, organisational, supervisory or prevention functions and could have prevented the breach.

In addition, the judge may impose certain ancillary consequences on the company, such as:

• suspension of its activities;
• temporary closure of premises or establishments;
• judicial administration;
• a ban on carrying out certain activities.

These measures may also be adopted as interim measures during the investigation phase in the cases provided for by law.

A final conviction for offences against workers’ rights may also have significant consequences in public procurement, including a ban on contracting with public authorities on the terms laid down in public sector procurement legislation.

What compensation can workers claim?

Committing the offence gives rise to an obligation to make good the loss and damage caused. Civil liability may include unpaid wages and employment-related sums, Social Security contributions, personal injury, non-pecuniary damage, proven expenses and any other loss causally linked to the acts.

A person convicted of the offence also bears civil liability where damage results from it. The company may bear secondary (subsidiary) civil liability for offences committed by its employees, staff, representatives or managers in the performance of their duties. This means that, if the person criminally liable does not pay the compensation, the company may have to pay it on the terms set out in the judgment.

Effective reparation of the damage may be relevant in the criminal proceedings and does not in itself remove possible liability for acts already committed. The amount of compensation will depend on the damage proven and on the link between that damage and the criminal conduct.

Practical example

A services company takes on several foreign workers without work permits, keeps them unregistered with Social Security and imposes working hours far in excess of the legal limits, taking advantage of the fact that they depend on that job and have no real alternatives.

If the percentages required by law are reached or the conditions for imposition through abuse of need are met, there may be liability for offences against workers’ rights. Criminal liability may fall on the director or on those in charge who knew of the situation and could have corrected it. The company may also be subject to ancillary measures and bear civil liability for the loss caused.

Assessing whether particular facts are criminally relevant requires analysing the specific employment conditions, the number of workers affected, the position and decision-making power of each person responsible, the employment and risk prevention documentation and the damage caused.

Frequently asked questions