The Labour Inspectorate: When the Employer Faces Criminal Liability

A visit from the Labour and Social Security Inspectorate (ITSS) understandably causes concern in any business. It is important, however, to separate two planes that are often confused: the administrative sanction for breaching labour rules —including obstructing the inspection itself— and the criminal liability of the employer, which only arises where the facts cross the threshold of an offence. As criminal lawyers who assist clients before the Labour Inspectorate, we explain where that boundary lies, what articles 311 to 318 of the Spanish Criminal Code punish and how the defence is built.

Obstructing the Inspectorate: an Infringement, not a Standalone Crime

It should be said clearly from the outset: obstructing the inspection is not, in itself, a crime. Refusing the inspector entry, delaying or hiding the documentation requested or failing to comply with a requirement is a very serious administrative infringement set out in article 50.1 of the consolidated Law on Infringements and Sanctions in the Social Order (LISOS), punishable by a fine. Obstruction only crosses into the criminal sphere through three routes:

• Violence or intimidation against the inspector. Labour inspectors and sub-inspectors have the status of public authority (Law 23/2015, governing the Labour and Social Security Inspection System). Assaulting or threatening them to prevent their action may amount to an offence of assault on authority.
• Falsifying data or documents. Handing the inspector simulated contracts, manipulated working-time records or altered documentation may amount to a documentary forgery offence (articles 390 et seq. of the Criminal Code), independently of the obstruction infringement.
• The underlying offence the inspection uncovers. This is the most significant scenario: the inspection brings to light facts that, in themselves, amount to an offence against workers' rights.

When the Inspectorate Refers the Matter to the Criminal Courts

The ITSS is obliged to bring to the attention of the Public Prosecutor or the Investigating Court any facts that could amount to an offence. That referral occurs, above all, where the inspection detects working conditions that place the life or health of the workers in serious danger (Art. 316 CP), labour exploitation or the imposition of conditions that impair the rights recognised (Art. 311 CP), the employment of minors or of foreigners without a permit in harmful conditions, or a significant defrauding of the Social Security. The report then ceases to be merely the origin of a fine and becomes the opening piece of a possible criminal investigation.

The Offences against Workers' Rights (Arts. 311-318 CP)

The Criminal Code groups under these provisions the most serious conduct against workers. It is worth knowing their content and their penalties, read directly from the statute:

Article	Conduct	Penalty
311 CP	Imposing, by deception or abuse of need, conditions that impair, suppress or restrict the rights recognised; simultaneous employment of a plurality of workers without Social Security registration.	Imprisonment of 6 months to 6 years and a fine of 6 to 12 months. With violence or intimidation, the next-higher penalty.
311 bis CP	Repeatedly employing foreigners without a work permit, or giving work to a minor without a permit.	Imprisonment of 3 to 18 months or a fine of 12 to 30 months.
312 CP	Illegal trafficking in labour; employing foreigners without a permit in conditions harmful to their rights.	Imprisonment of 2 to 5 years and a fine of 6 to 12 months.
314 CP	Serious discrimination in employment not remedied after a requirement or sanction.	Imprisonment of 6 months to 2 years or a fine of 12 to 24 months.
315 CP	Preventing or limiting the exercise of trade-union freedom or the right to strike.	Imprisonment of 6 months to 2 years or a fine; with coercion, imprisonment of 1 year and 9 months to 3 years.
316-317 CP	Failing to provide safety and health measures, placing the life, health or integrity of the workers in serious danger (intent under 316; gross negligence under 317).	Art. 316: imprisonment of 6 months to 3 years and a fine of 6 to 12 months. Art. 317: the next-lower penalty.

The article 316 CP is the backbone of the employer's criminal liability in this field. It is an offence of concrete danger: it does not require that an accident has occurred —it is enough to have generated the serious risk by failing to provide the measures due. If, in addition, death or injury follows, the offence of danger concurs with reckless homicide or reckless injury.

The Liability of the Employer and of the Directors

Who is liable where the employer is a company? Article 318 CP resolves the question: where the facts are attributed to a legal person, the penalty is imposed on the directors or persons in charge of the service who were responsible and on those who, knowing of the facts and being able to remedy them, failed to adopt measures. The court may, in addition, order against the company one of the measures provided for in article 129 of the Criminal Code.

The key, therefore, is not the formal title, but the position of guarantor: who had the duty and the real capacity to prevent the risk. Hence the identification of the true responsible party —the director, the executive with decision-making power, the prevention officer, the safety coordinator or the site foreman— is one of the axes of the proceedings.

The Duty to Cooperate and Its Limits

The employer has a legal duty to cooperate with the Inspectorate: to allow access to the workplace, identify himself, produce the labour and prevention documentation and comply with the requirements within the time limits set. That duty, however, is not unlimited:

• It does not cover criminal self-incrimination. The duty to provide administrative documentation coexists with the right not to testify against oneself and not to provide material that would serve to ground one's own criminal conviction. It is a tension best managed with advice from the very first visit.
• Constitutionally protected dwelling. Entry into premises that constitute a protected dwelling requires the holder's consent or the corresponding judicial authorisation (Art. 18.2 of the Constitution), even though inspectors may access workplaces in the ordinary exercise of their function.
• Rights during the procedure. The inspected party has the right to know the identity of the inspector and the object of the action, to receive a copy of the report, to submit pleadings and to appeal through the administrative and, where appropriate, the contentious-administrative route.

Lines of Defence

1. Distinguishing infringement from crime. The defence's first task is to place the case on its proper plane: many of the acts the report describes as serious infringements do not reach the threshold of the criminal offence. Keeping the matter on the administrative route, where appropriate, avoids the criminal reproach.
2. Absence of intent. The intentional offences of this title require knowledge and will. Under Art. 316 CP, moreover, the negligent form of Art. 317 —carrying a lower penalty— is available. Showing that there was no intention to create danger nor a conscious disregard for safety reorients —or excludes— the classification.
3. Effective delegation of functions. Demonstrating that prevention was genuinely delegated to a person with competence, resources and autonomy, with reasonable subsequent oversight, may shift the position of guarantor. A merely formal delegation, by contrast, does not exonerate.
4. Evidence in rebuttal of the report. Providing up-to-date prevention plans, risk assessments, records of training actually delivered and verified, and certificates of coordination of business activities serves to rebut the presumption of veracity and to demonstrate due diligence.
5. Objective imputation. In cases with a harmful outcome, examining whether the risk was actually realised in the result, or whether there was conduct attributable exclusively to the worker or a third party, is often decisive.

In this field, the settled case law of the Supreme Court requires a precise identification of the guarantor and a rigorous analysis of the link between the omission of measures and the danger created, which leaves a technical margin for defence that should be worked on from the outset, in coordination with the strategy before the Inspectorate and, where appropriate, before the social (employment) jurisdiction.