Outsource Technical Service
We need to hire a technical service to perform specific tasks within a process. These are tasks that have never been done in the company and that are now required by legislation and we have to hire a specialist to do them.
The service provided will not require that the person be 8h / day in our office, but it is available.
The idea is to hire their services as a freelancer and come xh / day to our facilities.
I have several questions to avoid the illegal transfer, assuming that it is a concrete process, that only he does it (none of the company does that), organization and own direction, etc.
Regarding the media: In the event that you use your own computer and we lend you the table and the chair, could you use our specific computer program to carry out the tasks? You would have to connect with a company username and password to our computer program and use your computer.
Regarding the orders: he will receive orders only from directions to tell him what we need and then this person will set the work guidelines and may have to give orders to other people in the organization on how to do the work. Would there be a problem in this aspect? Or would you only have to comment on it to the address or to another person that we indicate?
We would appreciate if you could tell us if you see a problem with this way of organizing us.
When an external provides services in the company, two figures can be given: false self-employed (if he is self-employed) or illegal transfer (if he is a worker of an external company). However, to comply and not fall into both breaches, the same criteria must be respected, and not fall into the following indications that lead to the irregularity (false self-employed or illegal transfer, where appropriate):
Organizationally depends on you. You organize trips for him, you tell him which clients to visit, you set a schedule for him, you tell him when he can take a vacation, he is subject to your disciplinary regime, etc.
Work with your means: you put a vehicle, laptop, means, tools, etc.
He is confused with your staff: he works hand in hand with your workers, even confusing with them, also going regularly (daily) to the workplace, etc.
You pay him a homogeneous salary every month, or valued in hours and not for services, etc.
If these indications concur, it could be considered false autonomous, or in its case, illegal transfer. On the contrary, he will be legally framed Autonomous if he is autonomous, independent, he organizes his agenda, decides which clients to visit, charges a commission, takes vacations when he decides, does not have a set schedule, is not subject to the disciplinary regime, etc. If this is the question, you must put everything in writing in his contract.
Based on our experience in the office, when we formalize a contract to avoid false self-employment or subcontracting to avoid an illegal assignment, everything must be in writing, and there must be clear coordination of invoices, expenses, emails, etc.
The judgment of the Superior Court of Justice of Andalusia, Seville, of April 10, 2013, includes the following assumption:
“The worker provided her services, 5 days a week, from Monday to Friday, from 8:00 a.m. to 3:00 p.m. in the Department of Protection of Historical Heritage, in the premises of the Provincial Delegation of Huelva of the defendant, located in Avda Alemania nº1 of this city, together with the employees and contractors of the defendant entity.
To undertake and fulfill her functions, the plaintiff performed her services in an open-plan room separated by cabinets, grouping the staff of four at four tables that the Provincial Delegation had made available to her, as well as a computer, telephone, etc. . She used office supplies (pens, paper, etc.), faxes, printers, etc. facilitated by the defendant Counseling and she used the auxiliary personnel assigned there when necessary …