Spain: When is a worker considered as a bogus independent contractor?

The worker, registered in the Special Regime of Self-Employed Workers, provided professional services for the company under a framework agreement for the execution of the works for the installation and repair of lifts equipment. Several years later, the company informs the worker about the lack of viability of the project, offering the possibility of obtaining works in another province, an offer to which the worker submits a claim for dismissal.

The Social Court dismisses the claim stating the incompetence of the social jurisdiction. Subsequently, the High Court of Justice of Las Palmas, states the competence of the social order to hear the matter and annuls the judgment in order to hand down a new resolution. The company appeals in cassation for unification of doctrine requesting that the inexistence of labor relationship between the parties must be declared and, as a result, the lack of competence of the social jurisdiction to hear the claim.

The question that arises is to determine the nature of the legal relationship that links the worker with the company, to decide whether or not it constitutes a labor relationship.

The worker provided his services exclusively for the company, on a regular, personal and direct basis, doing the same job as a second official assembler of the company. For each assignment, the worker signed an annex containing the price and the execution period set by the company. The worker was not subject to any work timetable, although he had deadlines for the installations and the result set by the company. Both the elevators to be installed and the necessary tools for this were supplied by the company although the rest of ordinary tools (boots, gloves, helmet, own vehicle and mobile phone) were provided by the worker, who wore work overalls with the logo of the company. The holidays should not be authorized by the company, although it excluded some days of rest. The worker had civil liability insurance and an occupational risk prevention contract for the self-employed.

In view of the proven facts, and operating the presumption of work of the article 8 of the Workers’ Statute, the Supreme Court concludes that in the case analyzed we can find the characteristic notes of voluntary, alienation work relationship (since the fruits of the work pass to the mercantile who assumes the obligation to repay for the services guaranteed) and dependence (the works were presented within the scope of organization and direction of the company that is the one who provides not only the equipment goods but also the assembly instructions).

However, from the proven facts there are indications that could affect the inexistence of dependence (the lack of subjection to the timetable or the non-imposition of holidays) and the alienation (the use of own means) since these signs are marginal and must yield to those of greater strength pointing in the opposite direction.

For this reason, the Supreme Court dismisses the cassation appeal for the unification of doctrine interposed by the company.