Consequences of hiring a false self-employed person
Your company has hired a self-employed person who invoices you through an SL. However, you organise the timetable and the work to be done for him. Are you aware that he may be a false self-employed person, even if there is a company involved?
False self-employed: definition
Some companies, in order to save the contribution costs of an employee, are hiring self-employed workers.
However, if the work performed meets the requirements of an ordinary employment relationship, such an employee will become a “false self-employed person”.
This is the case if there is dependency (if the tasks are carried out under the organisation and direction of another person) and outside employment (if your company assumes the risks and rewards).
False self-employed: criminal offence
Employment relationship
If the characteristics of an employment relationship are present, the person concerned is also a bogus self-employed person, even if he/she invoices his/her services from an SL. For example:
- If such a company has no staff, the work is carried out by the administrator and sole shareholder, and the characteristics of an employment relationship are met (working hours, specific tasks, etc.).
- The same applies if the only partners in the SL are the employee and his or her partner.
If the work performed by the self-employed person meets the requirements of an ordinary employment relationship, the employee is a bogus self-employed person, even if he or she has a company and invoices his or her services from it.
False self-employed: offence with a company
The fact that a worker is registered with the RETA and is registered with the tax authorities for tax purposes, issuing the corresponding invoices, is not a guarantee that he/she is really self-employed. Attention!
Furthermore, even if you hire the services of an SA or SL, it may also be the case that you are hiring a “false self-employed person”, with the risk of assuming the risks indicated above. Read on…
False self-employed: penalty
See the consequences and sanctions of this situation:
- The company will be subject to fines of between €3,126 and €10,000 for each of the unregistered employees. Attention! In addition, the existence of more than one employee in this situation will increase each of the applicable penalties.
- The Social Security will claim the contributions in the General Regime for up to the last four years, with a surcharge. In such a case, the bogus self-employed person will be entitled to a refund of his or her contributions.
- If the false self-employed person is affected, he/she will claim his/her status as a permanent employee, the differences in salary for the last year with respect to the standard wage, and compensation for unfair dismissal at the end of the relationship.
Hiring a freelancer
So avoid risks:
If you hire a freelancer, do everything you can to make the relationship distinct from an employment relationship. Do the following:
- Organisation.
Do not interfere in the organisation of their work. Once the freelancer has been briefed on the work and the desired outcome, he/she should organise his/her own work.
- Scheduling.
Do not impose timetables, do not plan your holidays, do not determine the length of your working day…
- Payments.
Do not make regular payments of the same amount or pay expenses.
- Tools.
Avoid giving him tools (to use your own).
- Differentiated.
Do not give them corporate cards or provide them with an email account. Do not give them a fixed position on your premises that could be confused with the rest of your staff.
In short, it is a question of creating sufficient indications so that any third party is clear that this person is not just another employee and does not appear to be a false self-employed person.
