You are a bogus self-employed worker: the claim that makes you an employee

The case, in five lines

What is brought

Declaratory action for a finding that an employment relationship exists, joined with a claim for salary differences if there are any. If the company has already let you go, a dismissal claim in which employment status is raised as a preliminary issue and the dismissal is challenged as unfair or void.

Before which court

The social section of the Tribunal de Instancia (the first-instance court) where you work or where the company is domiciled, at your choice (article 10 LRJS), after attempting conciliation before the administrative mediation, arbitration and conciliation service (article 63 LRJS). The requirement in article 5 of Organic Law 1/2025 does not apply: it belongs to the civil order.

Deadline

Dismissal: twenty working days, a lapse period running from the day after you were cut off or disconnected (articles 59.3 ET and 103.1 LRJS); the conciliation request suspends the count, it does not restart it. Salary differences: one-year prescription from the date each monthly payment was due (article 59.2 ET). Declaration of employment status: no period runs while the relationship lasts; once it ends, it prescribes in one year (article 59.1 ET).

Who can bring it

The person who provides the service, even if invoicing through their own company. The claim is brought against whoever receives and organises the work; if you invoice an intermediary other than the one giving you orders, both are sued, and article 103.2 LRJS protects the dismissal deadline if the real employer only emerges later.

Financial risk

At first instance the worker does not pay the company's costs, unless the court finds recklessness or bad faith and imposes a fine. If it concludes that the relationship is commercial, it declares that the social courts lack jurisdiction, and the relationship with the client is usually broken. Winning then requires sorting out the self-employed contributions and the VAT invoiced.

What you signed does not decide it: dependence and working for another do

Article 1.1 ET defines a worker as someone who voluntarily provides paid services for another's account and within the organisation and direction of another person. Article 8.1 adds that an employment contract may be made in writing or orally, and that it is presumed to exist between whoever provides a service under those conditions and whoever receives it in return for pay. What counts is how you work, not the name given to the contract.

The Tribunal Supremo (the Spanish Supreme Court) has repeated it for decades: contracts are what they are, not what the parties say they are. It has also held something many clients find surprising: registration in the self-employed scheme, tax registration and invoices with VAT are formal data that do not define the nature of the relationship, and they are often part of the mechanism set up to disguise it. Nor is the company saved by having made you invoice through your own company, if you personally did the work.

Since dependence and working for another's account are rarely admitted, the courts infer them from indicators. Of dependence: attending the workplace, keeping to a schedule, receiving instructions, working in person and integrated into someone else's organisation. Of working for another's account: the output of the work belongs to the company, the company sets the prices and chooses the clients, it pays you a fixed or periodic amount and you bear no business risk. No single indicator decides; the whole picture does.

What the company will argue, and when it is right

The company's defence usually repeats four arguments: that you had other clients, that you could turn down jobs, that you used your own computer or vehicle and that you could send someone else in your place. None is decisive on its own. Having a minor client on the side does not rule out employment, because holding two jobs is perfectly possible; the freedom to turn down work is illusory if refusing is penalised; and a laptop or a phone weigh little against an entire business organisation.

There are two cases in which the statute does exclude an employment relationship, and they must be spotted on day one. Article 1.3.f ET excludes whoever takes part in commercial transactions on behalf of one or more businesses while being personally bound to answer for the successful completion of the transaction, bearing its risk. And article 1.3.g excludes the carrier who provides the service under their own administrative authorisation and with a public-service commercial vehicle that they own or control, even if always working for the same shipper.

The contract for an economically dependent self-employed worker, known as TRADE, does not shield the company either. Article 11.2 of Law 20/2007 requires, among other conditions, that the activity not be carried out indistinguishably from the client's employees, that the worker have their own infrastructure where it is economically relevant and that they organise themselves by their own criteria. If you do the same as the colleague on the payroll, in the same place and under the same orders, you do not even meet the TRADE requirements, and the registered contract becomes one more sign of the sham.

Delivery riders and platforms: the law presumes employment

For delivery through digital platforms, the twenty-third additional provision of the ET goes beyond the general presumption. It presumes that the Statute covers the activity of people who provide paid services delivering or distributing any consumer product or goods for employers that exercise organisation, direction and control, directly, indirectly or implicitly, through algorithmic management of the service or of working conditions, via a digital platform.

Before that rule, in 2020, the Plenary of the Social Chamber of the Tribunal Supremo had already declared the relationship between a rider and his platform to be employment: the company was not a mere intermediary, it set the essential terms of the service and owned the essential assets, the app and the brand. The rider's bicycle and phone were minor means compared with that structure. And a rating that rewards availability and punishes refusals is control, even if no boss gives orders in person.

The presumption does not reach every platform: the provision speaks of delivery, and outside it (cleaning, care work, passenger transport, creative work) the general presumption of article 8.1 applies, with the same analysis of indicators. In addition, Directive (EU) 2024/2831 on platform work requires Member States to establish a legal presumption of employment where there are facts indicating control and direction, with transposition due by December 2026. In each case we check which rule is in force on the day the claim is filed.

Three actions, three clocks that run differently

While you are still working, the action to have your relationship declared an employment one has no deadline running: article 59.1 ET starts the one-year prescription from the end of the contract. But as soon as the company stops giving you work, disconnects you from the app or tells you it no longer needs you, that is a dismissal, even if it calls it termination of the services contract. And the action against dismissal lapses in twenty working days, not counting Saturdays, Sundays or public holidays (articles 59.3 ET and 103.1 LRJS).

The money runs on a different clock. The differences between what you were paid and what you were owed as an employee prescribe one year from the day each amount could be claimed, which is the date each monthly payment was due (article 59.2 ET). In plain terms: every month that goes by without a claim, the oldest month is lost. A formal out-of-court demand interrupts prescription, but it also alerts the company, and that decision is taken strategically, not on impulse.

Between the two periods there is a difference that decides cases. The conciliation request interrupts prescription, which then starts again in full; but as to the lapse period for dismissal, article 65.1 LRJS says it suspends it, and the count resumes the day after conciliation is attempted, or fifteen working days after the request was filed if it has not been held. The days you used before filing are not recovered. Whoever files the request on day eighteen reaches the claim with two days to spare.

Suing from inside or waiting for the cut-off: the decision that shapes everything

There are two moments to sue and each has its own logic. If you are still working, you can ask now for a declaration of employment status and for the differences for the last year, with the relationship alive and the evidence at hand. If you have already been cut off, the case is a dismissal case and employment status is argued inside it as a preliminary issue: without an employment relationship there is no dismissal, which is why the claim must expressly ask for both.

Suing from inside has an obvious risk: the company may stop giving you work as soon as it receives the conciliation request. If that cut-off comes in response to your claim, it breaches the guarantee against retaliation and may be declared void, with reinstatement and back pay; we explain this in the guide on retaliatory dismissal. What you should never do is leave yourself: if you stop turning up or declare the contract terminated, there is no dismissal to challenge, and ending the contract with compensation for the employer's breaches has its own rules.

The path is the social order. Before suing, conciliation must be attempted before the mediation, arbitration and conciliation service of your autonomous community (article 63 LRJS), and the claim is filed before the social section of the Tribunal de Instancia where you work or where the company is domiciled, at your choice (article 10 LRJS). The prior attempt at an appropriate dispute-resolution method under article 5 of Organic Law 1/2025 does not apply: it belongs to the civil order, commercial matters included. It would apply if the court found your relationship to be commercial and you then wished to sue in the civil courts over the end of the services contract.

The Labour Inspectorate and contributions: what changed in 2023

You can file a complaint with the Labour Inspectorate in parallel, and sometimes it is worth it. If the Inspectorate finds an employment relationship, the Social Security Treasury can claim from the company the general-scheme contributions going back up to four years, far more than the single year of wages you can claim. Those contributions count towards your pension and your benefits. But the complaint does not suspend the dismissal lapse period for a single day, nor does it replace your own claim for wages.

Many explanations still describe a system that no longer exists. Until March 2023, when the company challenged the Inspectorate's contribution assessment by arguing that the relationship was not employment, the labour authority took the question to the social courts through the ex officio procedure of article 148 LRJS. Law 3/2023 on Employment removed that route: today the nature of the relationship for contribution purposes is decided by the Inspectorate and the Treasury, and the company's challenge follows the administrative path and, where appropriate, the contentious-administrative courts. The ex officio procedure keeps other cases, but no longer this one.

They are two separate paths: your claim before the social section and the contributions file before the administration. That is why we coordinate what is said in each, because the company will exploit any contradiction. And once employment status is declared, what follows has to be put in order: the self-employed contributions for the same period, which can be claimed back from the Treasury as undue payments, and the VAT charged on invoices that, being salary, were not subject to that tax.

How we run the case, step by step

1. 1

   Securing the evidence while you still have access

   Before claiming anything, we preserve your own communications with the company: emails, chats, calendars, rotas, appraisals and the app records if you work through one. Only what is yours: taking client or company data can be turned against you.

2. 2

   Fixing day zero and both clocks

   If you have already been cut off, we fix the date and count the twenty working days. If you are still working, we calculate which monthly payments are still alive within the one-year prescription period and how many are lost with each month of delay.

3. 3

   Quantifying what is at stake

   We compare what you invoiced, excluding VAT, with the salary, extra payments and holidays under the applicable collective agreement, and we calculate your real length of service. Sometimes there are no differences, and the value of the case lies in compensation, seniority and contributions.

4. 4

   Filing the conciliation request against every possible employer

   We address it to the mediation, arbitration and conciliation service of your region against whoever gives you orders and whoever pays you, if they differ. We ask for the declaration of employment status and, as the case may be, for the dismissal to be declared unfair or void, and for the sums owed.

5. 5

   Suing before the social section of the Tribunal de Instancia

   With the days left after conciliation, we file the claim and ask for the company to produce at the hearing what only it holds: access logs, app data, rotas and the records of colleagues doing your same job. In parallel we assess a complaint to the Labour Inspectorate.

6. 6

   Hearing, judgment and regularisation

   At the hearing we prove the indicators with documents and witnesses. After judgment we monitor the company's choice between reinstatement and compensation, a possible appeal (recurso de suplicación) to the Social Chamber of the Tribunal Superior de Justicia (the regional high court), and the regularisation with Social Security and the tax authority.

The law that applies

• Art. 1 ET. It applies the Statute to those who voluntarily provide paid services for another's account and within the organisation and direction of another person. It excludes, among others, whoever takes part in commercial transactions while personally answering for their successful completion, and the carrier working under their own administrative authorisation with a public-service commercial vehicle they own or control. BOE-A-2015-11430
• Art. 8 ET. It allows the employment contract to be made in writing or orally and presumes it to exist between anyone who provides a service for another's account and within their organisation and direction and whoever receives it in return for pay. Where the required written form is missing, it presumes the contract to be open-ended and full-time, unless proven otherwise. BOE-A-2015-11430
• DA 23.ª ET. It presumes that the Statute covers paid delivery or distribution of any consumer product or goods performed for employers that exercise organisation, direction and control, directly, indirectly or implicitly, through algorithmic management via a digital platform. The presumption does not affect the exclusions in article 1.3. BOE-A-2015-11430
• Art. 59 ET. Actions arising from the contract with no special period prescribe one year after it ends, and those claiming payments, one year from when they could be brought. The action against dismissal lapses twenty working days after the dismissal took place, and the conciliation request before the competent public body interrupts that period. BOE-A-2015-11430
• Art. 63 LRJS. It makes an attempt at conciliation or, where applicable, mediation before the relevant administrative service, or before the body taking on those functions under an inter-professional agreement or collective agreement, a prerequisite for the proceedings. BOE-A-2011-15936
• Art. 103 LRJS. It sets a twenty working day lapse period for the action against dismissal, excluding Saturdays, Sundays and public holidays at the court's seat. If the claim was brought against someone wrongly taken to be the employer, time does not start running against the real one until it is established who that is. BOE-A-2011-15936
• Art. 148 LRJS. It governs proceedings started ex officio: from final decisions of the labour authority arising from infringement reports with financial loss to workers, from decisions finding fraud in collective suspensions or dismissals, and from reports or communications on discrimination. In its current wording it no longer covers contribution assessments challenged by the company. BOE-A-2011-15936
• Art. 11 Ley 20/2007 (LETA). It defines the economically dependent self-employed worker as one who earns at least 75 per cent of their income from a single client, and requires, among other conditions, that they do not perform their activity indistinguishably from the client's employees, that they have their own infrastructure where economically relevant and that they carry out their activity by their own organisational criteria. BOE-A-2007-13409

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

Frequently asked questions