Article 311 Spanish Criminal Code: Offences against the rights of workers

Article 311 punishes the imposition upon workers, by deception or by abuse of a situation of necessity, of conditions which impair their statutory rights, the use of contractual forms outside employment law, and the simultaneous employment of a number of workers without registration with the social security.

Wording of Article 311 of the Spanish Criminal Code

Elements of the offence

1. In number 1, deception or abuse of a situation of necessity, together with the imposition of conditions impairing statutory rights.
2. In number 2, engagement under contractual forms other than the contract of employment, or their maintenance contrary to an administrative requirement or sanction.
3. In number 3, the simultaneous employment of workers without registration or work authorisation, reaching the percentages laid down.
4. In number 4, knowledge of those practices on the part of the transferee of the undertaking who maintains them.

Defence strategy

The percentage thresholds. Number 3 rests upon precise percentages calculated by reference to the workforce. Determining the actual workforce of the undertaking or workplace at the relevant date, including workers on temporary contracts, frequently brings the case below the threshold.

Deception or abuse of necessity. Number 1 requires deception or abuse of a situation of necessity and not merely a breach of employment law. Conditions freely accepted, or a dispute as to the applicable collective agreement, belong to the employment jurisdiction and not to the criminal one.

Classification of the contractual relationship. Number 2 presupposes that the relationship was in substance one of employment. Where that classification is genuinely disputed, and there is a documented technical basis for the form adopted, the criminal intent is difficult to sustain.

Concurrence with the administrative sanction. The same facts are habitually the subject of a labour inspection sanction. Where the administrative penalty has been imposed upon the same person for the same facts and with the same basis, the principle of ne bis in idem must be raised.

• Article 312 CP: unlawful trafficking in labour
• Article 316 CP: offences against workplace safety
• Article 307 CP: social security fraud
• Company offences in Spain

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.