False Self-Employment: Uncovering the Reality and Consequences of this Labour Practice
In the field of employment, the term “false self-employed” has gained prominence in recent years. Many workers find themselves in situations where they are considered to be self-employed, but in reality they are in a dependent relationship with the company.
In this article we will explore what is considered to be bogus self-employed, the penalties associated with their employment and the legal requirements to avoid being classified as such.
Differences between an employee and a self-employed person
You must be very clear about the differences between an employee and a self-employed person (or self-employed person), as they are two different categories. The former has an employment relationship as an employee, while the latter carries out his or her professional or economic activity as a self-employed person.
- In general, self-employed workers are considered to be natural persons who habitually, personally, directly, on their own account and outside the sphere of management and organisation of another person, carry out an economic or professional activity for profit, whether or not they employ employees.
- On the other hand, an employment relationship exists when it is carried out for the account of others, both with regard to the fruits or results and the risks. In short, the results do not belong to the employee, but to the employer, and the cost or remuneration of the work carried out by the employee is not borne by the employee, but by the employer.
What is a false self-employed person?
A bogus self-employed person refers to a person who, although formally considered as self-employed, is in fact subject to an employment relationship of dependency with a company.
In other words, although he or she has the appearance of autonomy in his or her work, he or she does not have the freedom and control of a real self-employed person.
Bogus freelancers are often subject to schedules, guidelines and supervision by the contracting company, which contradicts the concept of autonomy.
This practice can be considered as an employment fraud and has significant consequences for both the employee and the company, ranging from financial penalties to tax and social security obligations.
What are the Indicia of Labour-relatedness?
In case of doubt, indications of employment are considered:
- The existence of control or supervision by the employer when carrying out the work; for example, it is an indication of work-relatedness to regularly attend work at the company in accordance with a timetable, even if it is flexible, and to submit to uniform guidelines with regular checks of the activity carried out.
- The fact that the material means and the structure for providing services are provided to the worker by the employer.
- The existence of permanent and constant production.
- The receipt by the worker of a fixed salary.
- The provision of services on a full-time or exclusive basis.
Legal requirements to avoid being considered false self-employed
To avoid being considered falsely self-employed, it is important to comply with certain legal requirements established by labour legislation.
- First of all, it is necessary to have decision-making autonomy over the work performed, i.e. to have the ability to organise and manage one’s own time and the tasks to be performed.
- In addition, it is essential to be able to provide services to several clients or companies simultaneously, which demonstrates economic independence.
- It is also important not to be exclusively dependent on one company for income. If a self-employed person invoices more than 70% to a single company, he/she is considered to be a false self-employed person.
- Another relevant aspect is the availability to use own resources and not to be subject to constant guidelines or instructions from the employer.
Complying with these requirements will help to avoid being considered as bogus self-employed and ensure a proper and fair employment relationship.
Penalties for hiring bogus self-employed workers
Penalties for hiring bogus self-employed can be severe and carry significant legal consequences.
In Spain, a false self-employed person is a worker who, despite being registered as self-employed, meets the requirements of a dependent employment relationship.
Companies that hire these bogus self-employed workers can face considerable fines and financial penalties, in addition to having to regularise the worker’s employment situation and pay the corresponding social security contributions.
In addition, these fraudulent practices can generate reputational damage for the company, affecting its image in the eyes of clients and collaborators.
It is therefore essential to comply with current labour legislation and avoid hiring false self-employed workers to avoid these sanctions.
The penalty that a Spanish company receives for hiring a bogus self-employed person depends on the situation and is applied according to whether it is minor, serious or very serious,
Minimum penalty: from 3,126 euros to 6,250 euros.
Medium penalty: from 6,251 euros to 8,000 euros.
Maximum penalty: from 8,001 euros to 10,000 euros.
However, these are not the only sanctions imposed on employers who hire a false self-employed person. In addition to the financial consequences, the Labour Inspectorate can demand the payment of Social Security contributions for the period during which the worker should have been paying contributions through the General Workers’ Scheme.
Your company hires a freelancer on a recurring basis to perform services for you. See what precautions you should take to ensure that this is not considered to be an employment relationship.
Recommendations to avoid being penalised for hiring a false self-employed
Take precautions
If any of these circumstances apply, the courts may consider the relationship to be an employment relationship, regardless of the contract you have signed (this will have to be assessed on a case-by-case basis).
This may lead to sanctions by the Labour Inspectorate or the regularisation of the employer’s and employee’s contributions with a 20% surcharge. To avoid this, take the following precautions:
- In the contract for the provision of services, avoid putting any indication of employment in writing. Make it clear that the freelancer has his or her own business structure and has the material and human resources necessary for the service contracted.
- Avoid those elements that distance the professional from “full freedom”: do not oblige them to be contactable, do not reserve the right to review and modify their work, do not give them orders or demand exclusivity.
- Avoid open-ended contracts. It is best to agree on a specific duration with express extensions (continuity and permanence are signs of employment).
Pay only for work already done and avoid fixed, recurring payments and the need for the freelancer to send you work on an ongoing basis. - Avoid any confusion of staff (not wearing the same uniform, not “clocking in”, not using the company premises as another worker, not being included in the timetables or holiday schedules, etc.) and do not provide the same training to the self-employed worker as to your workers.
In a nutshell
Understanding what is considered to be bogus self-employment, the penalties for hiring it and the legal requirements to avoid being classified as such is essential to protect workers’ labour rights. However, there is still a need for clearer and fairer regulation in the area of self-employment.
Take all possible precautions to ensure that the self-employed worker you hire on a recurring basis is not considered to have an employment relationship, starting with giving him/her full freedom in the execution of his/her work. Differentiate him from your workers.
