Comment

I. The issue at hand.

The issue is whether, in determining the identity of subject for the conduct classified as a very serious violation under Article 23.1(a) LISOS, it is necessary knowledge the business knowledge express knowledge that the employee—for whom it had not properly registered with Social Security—was receiving Social Security pensions or benefits incompatible with work a wage earner (in the case at hand, contributory unemployment benefits).

II.- The framework of reference letter.

For the purposes at hand, the framework governing reference letter established by Articles 22.2 and 23.1(a) of the LISOS. Thus, as provided in Article 23.1(a) of the LISOS, the following constitutes a very serious violation:

“a) To employ as workers recipients or applicants for pensions or other periodic Social Security benefits, the receipt of which is incompatible with work a wage earner, when they have not been registered with Social Security prior to the start of their employment.”

For its part, Article 22.2 of the LISOS considers the following to be a serious violation:

“2. Do not apply for membership or registration for employees who join your company, or apply for or registration as a result of an inspection, after the established deadline.”

As can easily be seen, both types of violations involve the same underlying conduct; that is, failing to register a worker prior to the start of the contracted service. However, the distinction that classifies the subject serious subject from the less serious one is that, in the case of a very serious offense [Art. 23.1(a) LISOS], the person in question must be receiving a Social Security benefit or pension that is incompatible with work, which is not the case for a serious offense (Art. 22.2 LISOS). Naturally, this distinction has a clear impact on the imposition of a more or less management assistant penalty management assistant Art. 40.1 e) LISOS management assistant :

“e) The violations set forth in Articles 22.2, 22.7(a), 22.16, and 23.1(a) shall be penalized as follows:

1. A serious violation of Articles 22.2, 22.7(a), and 22.16 shall be punishable by the following fine: at the Degree , from 3,750 to 7,500 euros; at Degree , from 7,501 to 9,600 euros; and at the Degree , from 9,601 to 12,000 euros.

2. A very serious violation of article .1.a) shall be punishable by the following fine: at the Degree , from 12,001 to 30,000 euros; at Degree , from 30,001 to 120,005 euros; and at Degree , from 120,006 to 225,018 euros.”

III. The Concept of Negligence as a Criterion for Determining Culpability.

Based on what has just been noted, the ultimate issue under discussion is whether the definition of subject set forth in Article 23.1(a) of the LISOS requires the presence of the element of culpability; that is, a certain Degree knowledge the part of the business regarding the elements of subject , particularly in the context at hand, regarding whether or not the person whom the business to register is actually receiving Social Security pensions or benefits that are incompatible with work a wage earner. Consequently, in order to determine whether the elements of the offense under Article 23.1(a) of the LISOS have been met, it is therefore necessary to define what Degree knowledge this latter circumstance is—or is not—required of the business .

Setting aside its extensive doctrinal argumentation, conference room of the Supreme Court relies on the concept of negligence, the elements of which were already defined in its Judgment 320/2025, dated April 3 (Case No. 6603/2022), incorporating criminal law criteria that can necessarily be extrapolated to the realm of administrative sanctions. Thus, the Court holds that the concept of negligence requires the concurrence of the following elements:

a.— An act or omission that (unintentionally) causes result to a legally protected interest, based on a causal relationship that conforms to the principles of logical analysis.

b. That such unintentional human conduct reflects a failure to exercise due care, either because the perpetrator acted negligently, leading to this lack of diligence, or because of a defect in the functioning of the intellect. Consequently, the perpetrator—without intending or accepting an result was avoidable—fails to take it into account even though it was also foreseeable (an element of culpability).

c.— That such negligence violates or breaches certain duties of care imposed by the general norms of social coexistence or required by specific regulations governing certain activities (element of unlawfulness).

d.) Finally, that negligence, as a causal factor, justifies the imposition of a penalty to be determined according to the severity or Degree fault (an element of punishability).

IV. — The resolution of the case: the irrelevance of knowledge regarding the receipt of benefits incompatible with work individuals who are not registered with Social Security.

In light of the foregoing, with respect to cases in which the business register the worker prior to the commencement of the contracted services, conference room of the Supreme Court concludes that, for the purposes of defining the subject referred to in Article 23.1(a) of the LISOS, the knowledge of the employee’s receipt of benefits incompatible with work is irrelevant. This is because, by failing to fulfill the essential duty to register its employees with Social Security, the business with gross negligence, as it fails to meet a budget of the employment relationship that enables the exercise of rights and obligations subject —for both the employee and the business itself—with the serious consequences that may result therefrom:

“That being the case, it follows that, by failing to register the worker, the employer must assume—in accordance with the reasonable standards of care expected of a prudent employer—that such an omission may give rise to a wide variety of consequences, starting with the fact that the unregistered worker may be receiving benefits that are incompatible with work. It is not necessary, therefore, for the employer who fails to register the employee to actually imagine that the employee might be receiving benefits and to accept the consequences of such an eventuality, which would place us more in the realm of eventual intent. The essential point is that, (…), the non-compliant employer commits a voluntary, clear, and grossly negligent omission with respect to a well-known legal obligation, and with harmful or damaging effects whose occurrence and extent can be characterized as naturally foreseeable as part of the conduct in breach, in agreement generally accepted standards in society.”

“By failing to register his employees, the noncompliant employer disregards the most elementary and basic precautionary measures and thereby engages in (…) ‘superlative or maximum negligence, with a complete lack of caution or, as we have said on occasion, by showing a complete lack of attention, failing to take the most basic or rudimentary precautions required by social interaction—precautions sufficient to prevent or contain the occurrence of foreseeable harmful consequences—thereby violating fundamental duties pertaining to coexistence and the established principles of consideration for others.”

final, regardless of whether or not it was aware of such circumstances, if the business fulfilled its basic obligation to register the employee, it would not have been found to have engaged in conduct punishable under Article 23.1(a) of the LISOS.

V. Conclusions.

First: The subject under Article 23.1(a) of the LISOS may be committed through negligence.

Second: Such negligence can be classified as serious, given business failure subject a basic obligation subject Social Security.

Third: Consequently, the business is not required knowledge specific knowledge business the employee in question is receiving benefits incompatible with the work; rather, such a situation arises as a potential consequence of the employee’s breach of contract.

Fourth: That being the case, if the worker fails to register with Social Security, it is irrelevant whether or not the worker informs the business of business status as a recipient of Social Security benefits, and even whether or not the worker subsequently submits an affidavit stating that at no time prior to the commencement of services did knowledge the business knowledge business status as a recipient of unemployment benefits.

VI.- Final note.

Aside from its qualitative significance—as a ruling issued by the plenary session of the Executive Council conference room of the Supreme Court—the judgment discussed in this commentary is also of extraordinary quantitative importance. While it is an inescapable principle in the field of labor relations to register employees prior to the start of their service [Art. 32.3.1 of Royal Decree 84/1996, of January 26, approving the General Regulations on registration companies and membership, registrations, deregistrations, and changes to data Social Security], the fact remains that failure to comply with this obligation continues to be the leading cause of complaints filed with the work Social Security Inspectorate (as highlighted in the 2025–2027 Strategic Plan of the work Social Security Inspectorate).