The consequences of preventing a labor inspection
Last October the National Court imposed a penalty of more than 60,000 euros on a senior center because its manager interrupted the interviews of an inspector with the employees.
In another previous post we talked about advice before a Labor Inspectorate in which it was strongly recommended not to hinder or hinder inspection actions, as the consequences of doing so could be dire for the company.
Very serious infringement
Preventing a Labor Inspection constitutes a very serious infraction according to the provisions of the National Court. The case being prosecuted occurred in July of last year when the acting Inspector appeared at the premises of a nursing home for the purpose of carrying out the appropriate inspection actions.
After interviewing the Director of the residence, the Inspector obtained imprecise and not very enlightening answers, deciding to continue with the visit of the facilities and interviewing the staff.
The Judgment of the National Court details that:
“he was prevented from staying in the residence and the identification of all the staff”
and that the company manager continually intervened, interrupting the interviews with the staff “without allowing them to answer freely”. She was also prevented from entering the front door and the laundry room.
For all of the above, the acting Inspector issued a report to the Provincial Labor Inspectorate assessing the possibility of sending the State security forces.
The ruling is blunt and defines as very serious the “actions or omissions of the employer whose purpose is to prevent the entry or permanence of labor inspectors or sub-employment inspectors” and values as “fair and proportionate” the penalty imposed on the company in the amount of 62,503 euros.
Article 18 of the Regulatory and Ordering Law for the Labor Inspection establishes that employers, workers and their representatives, as well as others responsible for compliance with the rules of the social order , are obliged, before a request to:
- Give due attention to Labor and Social Security inspectors and Labor Sub-inspectors.
- Prove your identity and that of those who are in the workplace.
- Collaborate with them during visits or other inspection actions.
- Declare before the acting official on issues that affect the inspection checks, as well as provide them with the information and documentation necessary for the development of their functions. Those who represent the subjects inspected must provide documentary evidence of such condition if the action takes place outside the home or workplace visited.
In addition, any natural or legal person is obliged to provide the Labor and Social Security Inspectorate with all kinds of data, background information or information of relevance to Inspector duties, provided that they are deduced from their economic, professional, business or financial relationships with third parties subject to inspection action, when required to do so.
Violation of the previous precept implies a possible obstruction of the inspection work and entails the application of a fine.
The regulation establishes the corresponding fine amounts, being those classified as very serious – in their minimum degree – with fines ranging between 10,001 and 25,000 euros. For the medium degree, the law contemplates between 25,001 and 100,005 euros. And for the higher degree, fines ranging between 100,006 and 187,515 euros are contemplated, at its maximum degree.
Criteria for assessing and qualifying the lack of obstruction
Article 50.4 of the LISOS considers the obstruction of the labor inspector very serious and defines it as that committed by “action or omission, by the employer, his representatives or people within its organizational scope, in order to prevent the entry or permanence in the workplace of Labor Inspectors or Employment Sub-inspectors, as well as the refusal to identify themselves, to identify or give reason for their presence on the people who are are in said center carrying out any activity”. They will also be very serious faults:
- The cases of coercion, threat or violence exerted on the Labor and Social Security Inspectors and the Sub-Inspectors of Employment and Social Security as well as the reiteration of obstruction behaviors classified as serious.
- Failure to comply with the duties of collaboration with officials of the Labor and Social Security Inspection system in the terms established in article 11.2 of the Labor and Social Security Inspection Law.
- Failure to comply with the duty to collaborate with officials of the Labor and Social Security Inspection system when the employer does not provide the information required for the control of their obligations in terms of the Social Security economic system, on computer support, when is obliged or accepts the electronic transmission of quota settlements or quotation data.
According to the criteria for qualifying offenses included in art. 39 of LISOS, the amount of the fine may be increased or reduced based on the following criteria:
- Negligence and intentionality of the offending party
- Existence of fraud or collusion
- Failure to comply with the prior warnings and inspection requirements
- Business turnover
- Number of workers or beneficiaries affected
- Harm causes
- Defrauded amount
Finally, keep in mind that the obstruction records enjoy a presumption of veracity and have probative value without prejudice to the evidence that in defense of the respective rights or interests may point out or provide the managed ones themselves.
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