How to distinguish between illegal lending of manpower and subcontracting?
In addition to the company’s liability, liability of the director for illicit lending of manpower
From subcontracting to illegal manpower lending
As part of a temporary IT project, a company subcontracted the management of part of its IT system. Following a referral to the employment authorities, the company and its director were prosecuted for illegal lending of manpower.
Our client's challenge
Avoiding the conviction of the company and its director
Criminal business law covers a wide spectrum of offenses related to business activities, including criminal employment law. The latter, which applies to offences committed in the context of employment relations between employers and employees, often leads to the employer’s liability.
Behind the notion of employer, we find both the legal entity and the manager. However, the liability of the director of a company accused of having committed a work-related offence by the sole fact of his capacity as legal representative is often sought.
In view of the implications of a criminal conviction and the existence of a criminal record, both the company and the director would like the director to be removed from the preventive process and be exempt from criminal liability.
However, this liability is often considered to be automatic. The will to exclude this commitment of responsibility is therefore inconsistent with the literal wording of the legislative texts.
Demonstration of the lack of classification of the offence
We accompany our clients and jointly establish the criminal defense strategy with them. We also assist them, independently of any legal proceedings, in understanding the measures to be taken to improve the processes in place within the company in order to limit the risks of criminal liability.
In this respect, we help our clients implement very precise control procedures to avoid any risk. In this context, we can also recommend the implementation of delegations of authority so that the potential criminal liability rests with the persons actually in charge of the decision-making process and who have the competence, authority and means to carry out their missions.
If the criminal liability of the director is questioned, we analyze the criminal file and gather, in collaboration with our client, all the elements that allow us to consider the qualification of the accused offence. Experienced in criminal proceedings, our team examines the basis for the prosecution and build the strongest possible legal argument to obtain the right decision.