An illegal assignment of workers is considered to exist when a company, which is not a temporary employment agency (ETT), hires a person and puts him/her to work for a different company.
An illegal assignment of workers is considered to exist when a company, which is not a temporary employment agency (ETT), hires a person and puts him/her to work for a different company.
As you may know, the transfer of workers is prohibited in our legal system. Only temporary employment agencies (ETT) are authorized to place workers at the disposal of another company, provided that the placement is carried out correctly.
When you need to cover your temporary needs, your company must use the services of a temporary employment agency to provide workers. This is a valid approach since temporary employment agencies are the only companies that can temporarily assign workers. However, if a company that is not a temporary employment agency assigns an employee to you, you will be committing an illegal assignment. The same will happen if you subcontract a service and act towards the workers of that company as if you were your own employer.
Article 43 of the Workers’ Statute (ET) deals with the assignment of workers, and states that the hiring of workers for temporary assignment to another company may only be carried out through temporary employment agencies duly authorized under the terms established by law.
When is it understood that an illegal assignment of workers is incurred?
In any case, it is understood that the illegal assignment of workers is incurred when any of the following circumstances occurs:
- That the object of the service contracts between the companies is limited to a mere provision of workers from the transferor company to the transferee company.
- That the transferor company lacks its own stable activity or organization.
- That it does not have the necessary means for the development of its activity.
- That it does not exercise the functions inherent to its status as an employer.
The risk of incurring in an illegal assignment of workers exists whether you subcontract the main activity of your company or subcontract auxiliary services (the only companies authorized to assign workers are temporary employment agencies). Illegal assignment will occur if the subcontracted company merely provides you with labor (without having its own business structure or, if it does have one, without performing the functions that correspond to it as an employer).
Example:
There is an illegal assignment when company A hires a worker, but not to work for A, but to assign him to company B. The worker renders services in B, as if he were really a worker of B, but being formally a worker of A.
Normally, the companies use this figure because the conditions of the worker in company A (for example, the salary) are worse than those that he/she should have if hired directly by company B. And it is also done to avoid B the risks of hiring the worker directly (claims, lawsuits, etc.).
What is the difference between an illegal assignment and a contract?
The difference with the illegal assignment is that in the case of contracts, each company has its own organization, maintains control and direction of the activity, directs, and pays its workers, and uses its own means of production. In addition, the activity to which each contracted company is dedicated must have its own autonomy, i.e., it is contracted to do something that the contracting company does not do.
Sometimes it is difficult to see whether it is an illegal assignment between two real companies or a contract. And many times, an illegal assignment is disguised as a contract.
Consequences of illegally assigning workers
The Article 43 of the ET provides that the employers, the transferor and the transferee, who violate the aforementioned (illegal disposition of workers), will be jointly and severally liable for the obligations contracted with the workers and with the Social Security, without prejudice to any other liabilities, including criminal liabilities, that may arise from such acts.
The workers will have the right to acquire the condition of permanent employees.
In addition, and with respect to the affected workers, the ET recognizes their right to acquire the status of permanent employees, at their choice, in the transferor or transferee company. The rights and obligations of the employee in the assignee company will be those that correspond under ordinary conditions to an employee rendering service in the same or an equivalent job, although seniority will be computed from the beginning of the illegal assignment.
The Law on Infractions and Sanctions in the Social Order
On the other hand, it must be considered that the Law on Infringements and Penalties in the Social Order (LISOS) establishes in its article 8.2, on infringements in matters of individual and collective labor relations, that it is a very serious infringement “the assignment of workers in the terms prohibited by the legislation in force”, with fines in its maximum degree of 120,006 euros to 225,018 euros.
For further information, please contact Labor consulting
