The TSJ of Catalonia annuls the procedure followed against an employer sanctioned for hiring a foreigner without authorization, upon appreciating ex officio the lack of passive consortium litigation necessary under art. 151.5 LRJS.

Appeal No. 1120/2025 is resolved against the ruling of Court No. 1 of Reus,procedure for challenging administrative sanctions in labor and social security matters No. 1045/2022.

The Labor and Social Security Inspection(ITSS)filed an infringement report against a business owner of a company dedicated to the trade of fruits and vegetables, after detecting on 07/16/2021 an undocumented foreign worker, who says his name is Donato, carrying out sales and collection tasks, without residence and work authorization in Spain. 

The businessman and the worker were summoned to the inspection offices, and the employee acknowledged that on the day of the visit he was working for the businessman.

On January 27, 2022, the ITSS issued an infringement report and imposed a penalty of 10,015.02 euros for a very serious infringement (art. 54.1.d) LISOS). The businessman presented allegations in February 2022, which were dismissed by resolution of March 9, 2022. 

The businessman appealed to the Department of Business and Labor, which confirmed the sanction (08/27/2022). Faced with this resolution, the businessman filed a lawsuit that was resolved by the Social Court No. 1 of Reus which rejected the claim and declared the sanction imposed within the law.

The businessman appealed to the TSJ requesting:

• The nullity of the administrative resolution due to violation of fundamental rights(arts. 24.2 of the Spanish Constitution, 6.3.d of the European Convention for the Protection of Human Rights and Fundamental Freedoms and 48.2 of the Charter of Fundamental Rights of the European Union).
• Compensation of €10,000 for moral damage derived from said violation.

The Attorney General's Office of Catalonia challenged the appeal, requesting its dismissal and confirmation of the appealed sentence.

Previous question. Lack of necessary passive litigation.

The Court assesses ex officio the existence of a procedural defect consisting of the lack of necessary passive consortium litigation, as the affected worker has not been summoned. According to art. 151.5 Law Regulating Social Jurisdiction, it is mandatory to summon all workers directly involved in the procedures to challenge administrative sanctions for labor violations.

In this case, it was clear that the worker had filed a lawsuit for dismissal and a claim for compensation against the employer, which implied his direct interest in the outcome of the process. Furthermore, there is no record of the result of that lawsuit, filed in 2021, the result of which could influence the present process. The participation of the worker and the incorporation of the documentation or resolutions of their labor procedure are essential, since they could generate res judicata effects regarding the employment relationship (222.4 LEC). 

The TSJ reaffirms that according to the doctrine of the Supreme Court (STS 4.12.2019, rec. 104/2018), the procedural defect of lack of necessary passive consortium affects the procedural public order and can be assessed ex officio by the judicial body.

The Court highlights that the placement of the worker is not a mere formality, but an essential guarantee of effective judicial protection (art. 24 EC) and violates the principle of procedural contradiction, especially when the sanction is based on their actions or statements made before the ITSS. The omission of Donato's summons in the process causes defenselessness and vitiates the procedural relationship.

The absence of a summons, even if not reported by the parties, constitutes an appreciable procedural defect ex officio., for affecting procedural public order and the correct establishment of the necessary passive consortium litigation.

For all this,The TSJ of Catalonia partially upholds the first reason for the appeal and declares ex officio the nullity of the proceedings.Appreciates the lack of necessary passive consortium litigation and declares the annulment of the sentence, taking the proceedings back to the time of summons to trial  in order for the affected worker to be summoned so that he can appear as a party to the procedure. 

The ruling does not resolve the alleged violation of fundamental rights or the compensation for moral damage requested by the businessman..