Extent of the employer’s duty to cooperate with the Labour Inspectorate

Written on 24 Jun 2021

In practice, the actions of the Labour and Social Security Inspection raise many questions, as how the employer should behave and the extent of its duty to cooperate in the course of inspections. In a new Judgment on the subject, the Labour Chamber of the National High Court analyses whether the failure to provide certain information –previously requested by the inspectors– constitutes a very serious infringement for obstructing the inspection work. It also examines the qualification and grading of employer´s liability.

The judgment of 5 May 2021 of National High Court is based on the proceedings initiated by the Labour and Social Security Inspectorate (hereafter "the LSSI" or "Labor Inspectorate") at GlovoApp23 S.L. workplace (hereafter "Glovo" or "the Company"). In the course of its work, the LSSI required the Company to provide extensive documentation. The Company appeared as many times as requested by the LSSI and provided much of the information requested, although not all of it. Specifically, the data relating to the time slots selected by the delivery drivers were omitted, in spite of requests from the Labor Inspectorate. This makes it impossible for the LSSI to determine how long the delivery drivers have been at the company's disposal to perform their work, so it cannot properly analyze whether the minimum salary to which the delivery drivers are entitled is being respected.

The Labour Inspectorates regards the Company’s refusal to provide the requested data as a breach of the employer´s duty to cooperate with the LSSI.  Section 18.2 of the Law regulating Labour and Social Security Inspection System, states that companies are compelled to provide the LSSI with any data, records or information relevant to the inspection work.

In particular, the LSSI considered that the Company's behavior constitutes a disturbance to the normal exercise of the Labour Inspectorate’s functions, typified as a very serious offence in section 50.4 of the Law on Infractions and Sanctions in the Social Order ("LISSO"). As a result, the LSSI imposed a total penalty of EUR 100.006 on the Company.

Glovo contests the LSSI's decision before the National High Court, claiming that there was no obstructive conduct, since the Company appeared every time the Inspectorate required it to do so, and had provided all the requested documentation it had. The National High Court judgment analyses two questions: (i) whether the Company’s behaviour hindered the inspection work of the LSSI, and (ii) whether the qualification of the employer behavior as "very serious" is proportionate to the circumstances of the case.

As regards to the first question, the National High Court applies the Supreme Court's doctrine on the subject, which declares the presumption of veracity of the Inspectorate's reports. In this case, the Company’s obstructive behavior was consider to be proven, as insufficient evidence has been produced to refute the content of the reports. Therefore, the judgment confirms that Glovo’s refusal to provide the requested data constituted breach of the Company’s duty to cooperate with LSSI.

With regard to the qualification and grading of the penalty, the National High Court reduced the penalty imposed by the LSSI to EUR 50.000. The judgment stated that Glovo’s obstructionist behaviour was not complete and persistent, as the Company has appeared as many times as it was requested, and provided the Labour Inspectorate with much of the required information, although not all of it. Despite the fact that the information provided has not been complete, the Court considers that there was no intention to hide information. Furthermore, it was also consider that, at the time of the inspection report, there was no company obligation to keep a timetable records to the extent intended by the Labour Inspectorate.

In short, the Company's duty to cooperate with the Labour Inspectorate extends to all requests for documentation made by the ITSS in the course of its actions. However, as the National High Court recalls in its judgment, this duty does not cover the company's obligation to provide data in which it does not have, since that would compel the company to try to carry out a reconstruction operation based on other data, which cannot be expected.