Social security deregistration over the weekend or on a non-working day to re-register on the next working day may be exempt from penalties

Some companies choose to deregister their employees from Social Security during weekends, non-working days or rest periods, only to re-register them on the next working day, whilst keeping the employer/employee relationship and the type of contract unchanged. Supreme Court (Judicial Review Division) Judgment no. 910/2026 of 15 July assesses whether this business practice is contrary to law and constitutes a violation under Article 22(2) of the Employment-Related Violations and Penalties Act. According to this judgment, it is a serious violation “to fail to apply for the initial enrolment or registration of workers coming into your service, or to apply for such — as a result of checks and enquiries — after the established time line. For these purposes, a violation shall be deemed to have occurred for each of the workers concerned”.

The Spanish Social Security Agency finds that the obligations regarding enrolment, registration, and contribution established in the Social Security Act have been violated. Pursuant to Articles 139 and 144 of the same law, respectively, the employer is obligated to keep employees registered throughout the entire duration of the employer/employee relationship, including weekly rest periods, non-working days and other times during which, even without the actual rendering of services, the relationship remains in effect. The obligation to pay contributions begins with the start of employment and ceases only upon a valid termination resulting from an actual end to the employment relationship. For this reason, the public authority considers such conduct to be fraudulent and contrary to the legal system, as it involves a sham termination of the employer/employee relationship to improperly reduce Social Security costs. In addition to the harm caused to the social protection system and to the workers themselves, this practice creates a situation of unfair competition with respect to companies that properly fulfil their contribution obligations. From this perspective, the Social Security representative in the proceedings adds that each improper termination results in the worker not being properly registered during the affected period. The violation does not lie exclusively in the formal act of filing for deregistration, but rather in the result prohibited by the legal system: the failure to register and pay contributions for workers whose employer/employee relationship remains in effect. Hence, this is considered conduct that falls under the violation defined in the aforementioned Article 22 of the Employment-Related Violations and Penalties Act, which penalizes the failure to apply for or maintain the registration of workers for each worker concerned — in this case, twenty-six serious violations, one for each worker improperly deregistered.

However, the Supreme Court does not agree with this view. After setting forth the prevailing constitutional doctrine and the relevant case law, it interprets that the contested Article 22(2) of the Employment-Related Violations and Penalties Act clearly identifies the conduct that the legislature intended to subject to administrative liability. Thus, two distinct categories are distinguished: a) the failure to file an initial application for enrolment or registration of workers entering the company’s service; and b) the late filing of the application for enrolment or registration when it is submitted after the legally established time limit as a result of checks and enquiries, that is, when the regularization of the worker’s status is prompted by the intervention of the Labor and Social Security Inspectorate and not by a voluntary action on the part of the obligated party. Thus, the subject matter elements of the violation consist of the existence of an employer/employee relationship that establishes the employer’s obligation to ensure the worker’s enrolment in the Social Security system; the corresponding obligation to apply for the worker’s initial enrolment or registration; and, finally, the breach of that obligation due to either a complete failure to file the application or the late filing of the application, contrary to the terms expressly laid down in the law.

The legal interest protected by the provision in question is the proper administration of the Social Security system, insofar as it requires that all workers be duly enrolled in the system from the outset of their employment, thereby enabling adequate oversight of contribution obligations and the effectiveness of protective measures. “Consequently, the conduct described by the legislature consists of a worker providing services without the employer having duly arranged for the worker’s initial enrolment or registration with the Social Security, or of the belated rectification of that situation following checks and enquiries by the Labour Inspectorate. It is, therefore, a violation directly linked to the failure to comply with the original registration obligations that arise at the start of the employer/employee relationship” (5^th point of law). However, the company’s conduct in this specific case does not fit the alleged violation, since it has not been demonstrated that the affected workers were not registered or that the registration documents were submitted late. What is being questioned is the company’s practice of processing the workers’ deregistration during certain periods in order to re-register them. This conduct may be questionable in terms of its compliance with other provisions (Arts. 139 and 144 of the Social Security Act, for example), but not in terms of its inclusion under the specific penalty provision applied by the Social Security.

In this regard, the Court notes that Article 22(2) of the Employment-Related Violations and Penalties Act penalizes exclusively the failure to apply for enrolment or registration and the late filing of such applications for such. At no point does it envisage or mention the improper use of deregistrations and subsequent successive re-registrations with respect to workers already enrolled in the system. “The alleged conduct therefore falls outside the semantic and legislative scope of the violation applied. The interpretation upheld by the public authority effectively entails an expansion of the scope of the penalty provision beyond the cases expressly provided for by the legislature. However, such an expansion is incompatible with the principle of legality in administrative penalties set out in Article 25(1) of the Constitution, whose substantive dimension incorporates the requirements of specificity and definiteness. In accordance with the established constitutional doctrine cited in the preceding point of law, penalty provisions must define punishable conduct with the greatest possible precision, excluding both analogical application and expansive interpretations in malam partem that lead to the penalization of conduct not unequivocally covered by the legal description” (5^th point of law). It is not sufficient to assert that the employer’s conduct pursued an evasive purpose or that it exhibited characteristics susceptible to being classified as fraudulent. “In the field of administrative penalties law, the substantive unlawfulness of conduct cannot compensate for the absence of a specific legal definition” (5th point of law). And, in this case, the workers concerned were in fact registered with the Social Security. The administrative action is based exclusively on the successive deregistrations and new registrations processed during weekends and non-working days, facts that do not correspond to any of the classes of conduct defined in the provision invoked by the public authority.

It may be overly restrictive to interpret that failing to process an enrolment is equivalent to improperly processing a deregistration, but administrative law requires caution. However, if the legal relationship continues — as the judgment itself acknowledges — the provision in question requires notifying the “enrolment of workers entering their service”, a requirement that was not fulfilled when the deregistration was processed. One could even refer to Article 22(3), which also classifies the failure to pay the relevant contributions in the prescribed manner and within the prescribed time limit as a serious violation; for if the employer/employee relationship continues and the relevant contribution is not paid, this requirement may be violated. Not surprisingly, although for a different purpose, Article 22(6) classifies as a serious violation the notification of deregistration from a Social Security class despite continuing the same work activity or providing the same services, provided that an improper enrolment in a self-employment class is used, something that does not occur in this case and that would hardly permit an analogous interpretation in the application of a penalty. A different approach would have to be taken if the company does, in fact, terminate the employer/employee relationship and establishes a new one; for, aside from a presumption of fraud that would require proof to the contrary, this would entail a mandatory registration and deregistration, without any violation.