The Workers’ Statute, in its article 1.3.d, excludes the employment relationship in family jobs when it is carried out “by way of friendship, benevolence or good neighborliness” . And this is what a Huelva Social Court has considered, which has issued a ruling in which it revokes three acts of the Labor Inspection that had imposed three sanctions of 3,126 euros on a restaurant and claimed more than 20,000 euros for alleged discoveries to Social Security.
The lawyer Jose Ignacio Bidon, of Bidon Lawyers,who has defended the owner of the family business, explained that it is a very common problem in family businesses, and it is very common for the Labor Inspectorate, when it goes to a work center where several members of the same family work , impose important fines and draw up records for lack of Social Security contributions.
The lawyer recalls that the minutes of the Labor inspection enjoy an almost absolute veracity , but also the jurisprudence considers that this absolute veracity is not equivalent to an indisputable fact, but can be distorted by the practice of certain tests .
A punctual help or the simple permanence in the business is not equivalent to an employment relationship
In the case referred to in the ruling handed down by Social Court number 2 of Huelva, the defense called other waiters and relatives as witnesses, who indicated that occasional help or their simple permanence in the business does not amount to a relationship labor.
The sentence declares proven that on May 21, 2017, the Labor inspection made a visit to a restaurant in Mazagon, where two children of the owner and a grandson were,as well as a fourth person. The two children were in the kitchen at the time of the inspection and the grandson was carrying a tray with drinks, the sentence states. None of the four people were registered in the general Social Security system, so the Inspectorate drew up a report for serious infraction and proposed a penalty of 17,505.60 euros.
The defense argued that on the day of the inspection they were enjoying a “family meal” and that the people surprised in the restaurant were not providing services on behalf of the owner , something that other children and other employees of the owner were doing, which They are the ones who “truly had a labor relationship on behalf of, under dependence and within the sphere of organization” of the owner.
According to the judge, this last point has been corroborated by the work life report, which shows that the woman had five other children and two more workers discharged.
The family home is right next to where the bar is , it is also the home of one of her children and also the kitchen of the restaurant is the same as the house itself.
It is a job carried out “by way of friendship or benevolence”, the sentence specifies.
The judge says that the presumption of certainty of the infraction records made by the Labor and Social Security inspectors, refers exclusively to the facts of “perception directly by the Inspection and that have been verified by the acting inspectorand it extends to those accredited by means of evidence that have been consigned in the record, without including the general assessments, and the assessments known by the statements of third parties that have not been verified by the inspector”.
In the opinion of the magistrate, the existence of a labor relationship between the owner and her other two children and grandson cannot be appreciated in this case, since in order for “the obligation to enroll workers in Social Security to arise, the existence of a prior employment relationship, which has not been proven in this case with respect to these three people”.
In this sense, it adds that it is not proof of the existence of the contractual link established in article 1.1 of the Workers’ Statute that “the two defendant children will be found there together with the grandson, in the restaurant under the conditions described by the inspection, because there is no evidence, or indicia, that there was an employment contract between the parties, finding ourselves rather before a job carried out by way of friendship or benevolence, expressly excluded from the scope of application of the Workers’ Statute in article 1.3. d”.
And all of this, continues the ruling, motivated by the direct parental relationship that unites the owner and the two children and the sanctioned grandson. “Even,even if they had been there in order to lend a hand , which was not suggested by either party, if it were an occasional help (which would not be understood having up to seven people employed and not being high season, for what it charges force the thesis of the plaintiff that there was a family meal on Sunday) this would not prove the existence of a labor relationship, “ says the judge.
However, the magistrate considers that the interpretation that should be made is different with respect to the Intervention of the fourth person found in the restaurant at the time of the inspection and who does not have any family ties with the owner of the business. This woman was seen in the kitchen of the restaurant, specifically,“peeling potatoes, with an apron” and the next day I started a formal employment relationship. In this case, the judge considers that the defense arguments indicated with respect to the three relatives cannot be applied, since “there is no other justification than the work for others and dependent on and organization of the company that explains their presence in the work center and taking care of kitchen work”.
Consequently, the judge has annulled the sanction of the three family members but maintains the fine of 3,126 euros for this fourth person, whom she considers to be a worker .

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