The employer and his agent in social criminal law
During a social control carried out within a chain of restaurants, a consultant, under independent status, is arrested by the police in possession of the employment contracts of the company’s staff. The latter is prosecuted before the Criminal Court for the following charges:
- Employment of foreign workers without a residence permit for more than 3 months (article 175§1 of the Social Penal Code).
- Lack of verification of the workers’ residence permit (article 175 §1 of the Social Penal Code).
- Lack of immediate employment declaration (DIMONA) (article 181 of the Social Penal Code).
As a result, he risks being sentenced to particularly high fines and even imprisonment.
The charges for which Mr. X is being prosecuted impute criminal responsibility for the offense to “the employer, officer, or agent”, to the exclusion of any other person. However, these concepts have specific definitions in social criminal law.
Article 16.3° of the Social Penal Code defines employers as “those who exercise authority over workers”.
The notion of agent covers in particular any natural or legal person charged by the employer to perform one or more acts on their behalf to ensure compliancy with social law (CE Clesse, Droit penal Social, Bruylant 2013 , pp. 257 and 261).
According to the Court of Cassation, it is up to the judge to decide whether the agent has the authority or the competence necessary to effectively ensure compliance with the law (Cass., January 3, 2012, Pas., 2012 , p. 1).
However, no liability can be attributed to the agent if he has acted only on the order of his employer (we underline, C-E Clesse, Droit penal Social, Bruylant 2013, p. 261).
In order to have the consultant acquitted, the strategy, therefore, consists of demonstrating that the latter is neither an employer nor an agent with the power to ensure, on behalf of the employer, compliance with social regulations.
It is, therefore, appropriate to gather as many supportive elements as possible, to establish that the latter has no empowerment, competence, authority or means whatsoever to ensure compliance with the social penal provisions that had allegedly been violated.
It was noted that Mr. X had provided his services simply as an external consultant in food safety, a function that has nothing to do with that of an HR consultant.
However, it remained to be explained why this consultant had been found, on the day of the inspection, in possession of the employment contracts of certain members of the staff on the one hand, and was the interlocutor of the social secretariat of the company on the other hand.
On the basis of the explanations provided and a careful examination of the parts, it was maintained that the consultant, in addition to his consultancy mission, had wanted to make himself useful vis-à-vis the employers of the company by carrying out, on behalf of the latter, various administrative tasks including document races between the company and the social secretariat.
However, in carrying out these tasks, the latter had always acted on the orders of the real employers without ever taking any legal action aimed at complying with social legislation, which was to exonerate him from any liability.
After hearing the thesis defended by the consultant, the Court considered that it was not excluded that the latter played the role of a simple courier.
Be that as it may, the fact that he was in contact with the social secretariat was not enough to make him an employer with authority over workers, or an agent with the power to ensure, on behalf of the employer, compliance with social regulations.
The consultant was therefore acquitted based on the benefit of the doubt.