Corporate responsibility towards work experience students: the social security surcharge

The management of work experience students in the business sector has undergone a radical transformation in recent years, shifting from a model based purely on academic training towards full integration into the Social Security protection system. This change not only entails administrative obligations regarding registration and contributions, but also places a direct and potentially onerous liability on companies in the event of workplace accidents or occupational illnesses.

The recent Management Guideline 12/2026 of the National Social Security Institute, issued on 11 May 2026, has consolidated an interpretation that removes any doubt regarding the application of the benefits surcharge to this group. Work placements are no longer a ‘low-risk area’ from a legal perspective but have become a critical element of labour Compliance.

1.  The regulatory framework: Treating trainees as employees

The starting point for this new legal reality is to be found in the fifty-second Additional Provision of the Consolidated Text of the General Social Security Act, introduced by Royal Decree-Law 2/2023. This provision establishes the inclusion in the social security system of students undertaking external training or academic placements.

As detailed in Management Guideline 12/2026, the law is explicit in defining the status of these students:

“Persons undertaking the work placements referred to in paragraph 1 shall be treated as equivalent to employees under the General Social Security Scheme, excluding the special schemes within it (…).”

This treatment is not merely formal. It implies that, for the purposes of social security protection, the trainee enjoys cover equivalent to that of an ordinary worker with regard to occupational risks (accidents at work and occupational diseases). Paragraph three of the aforementioned additional provision specifies that the social security cover shall be that corresponding to the applicable scheme, with no exclusions other than unemployment, the FOGASA and vocational training.

2.  The benefit surcharge: A non-insurable financial penalty

Article 164 of the Consolidated Text of the General Social Security Act (TRLGSS) regulates the benefit surcharge arising from occupational contingencies. This legal concept is of a hybrid nature: it is both a penalty for the offending company and additional compensation for the beneficiary.

The legal text, cited in Management Guideline 12/2026, states:

“All financial benefits arising from an accident at work or an occupational disease shall be increased, depending on the seriousness of the breach, by between 30 and 50 per cent, where the injury is caused by work equipment or in facilities, centres or workplaces that lack the statutory protective measures, or where such equipment is out of order or in poor condition, or where general or specific health and safety at work measures, or those relating to the worker’s suitability for each job, have not been observed, taking into account the nature of the work and the worker’s age, sex and other circumstances.”

The severity of this measure for the company stems from two key factors:

• Amount: The increase of between 30 per cent and 50 per cent applies to all financial benefits (temporary incapacity, disability pensions, etc.).
• Non-insurability: Paragraph 2 of Article 164 expressly prohibits the insuring of the surcharge, declaring any agreement to cover or transfer it null and void. The cost falls directly on the company’s assets.

3.  The INSS’s position: Management Guideline 12/2026

The issue addressed by the INSS in its guidance of May 2026 was whether this surcharge applied to work experience students, given that they do not have an employment relationship in the strict sense. The conclusion, based on a report from the Directorate-General for Social Security Organisation (DGOSS), is affirmative.

Management Guideline 12/2026 concludes unequivocally:

“It is possible to justify the application of this surcharge where the benefits provided by the scheme arise from an accident at work or an occupational disease occurring during the work placement, and where it is established that there has been a breach of the health and safety measures required during the course of the training activity.”

The reasoning is logical: if the trainee is covered by the protection scheme for occupational contingencies and the legislation does not expressly exclude the surcharge, the general regime must apply; for the purposes of liability for failure to prevent accidents, the scheme treats the trainee in the same way as an ordinary worker.

4.  The ‘duty of care’ and employer liability

Spanish case law has developed the concept of the ‘duty of care’ to define the employer’s obligation to ensure the physical safety of those working within their organisation. This doctrine is fully applicable to trainees.

The Labour Chamber of the High Court of Justice of Cantabria, in its judgement 575/2025 of 12 September, states that ‘the employer must ensure the health and safety of the workers in their employ in all aspects relating to work… In Article 15(4) states that the effectiveness of preventive measures must (even) take into account any distractions or acts of negligence—not amounting to wilful recklessness—that the worker might commit.”

For the surcharge to apply, three conditions must be met, according to established case law (as cited in Judgment 974/2015 of 10 February of the Social Chamber of the Court of Justice of Catalonia):

• Existence of harm: An accident or illness giving rise to a
• Breach of a safety rule: Whether a specific rule or the general duty of care.
• Causal link: The damage must be a direct consequence of the failure to take

It is essential to emphasise that the burden of proof lies with the company. The employer must demonstrate that it has exercised all due diligence, beyond regulatory requirements, in order to negate its liability.

5.  Practical implications for companies and law firms

The application of the surcharge to work experience students obliges organisations to review their induction procedures. The mere formal existence of a prevention plan is not sufficient; it must be implemented in a genuine and effective manner.

An analysis of the INSS guidelines confirms the risk of companies facing increased benefit costs and identifies four critical operational areas:

• Specific risk assessments: An intern cannot be treated in the same way as an experienced worker. Their lack of experience is a risk factor that must be assessed.
• Tailored preventive training: The trainee must receive clear training on the risks associated with their role before commencing their duties.
• Effective supervision: The role of the tutor is not merely academic; they are responsible for ensuring safety in day-to-day work.
• Inclusion in occupational health and safety protocols: The trainee must be included in drills, the provision of PPE and medical check-ups where applicable.

One key point clarified by the INSS is the attribution of liability: ‘any liability arising from the surcharge shall be attributed to the company, institution or organisation within whose organisational framework the breach that caused the damage occurred… without it being possible, as a general rule, to attribute joint and several or subsidiary liability to parties other than the party directly responsible for the breach.’

This means that, even if the agreement is with a university, liability for the surcharge will fall on the company where the student is undertaking their work placement if that is where the breach of safety regulations occurs.

6.  The risk of ‘conversion to employment’ and circumvention of the law

Beyond the isolated accident, there is a latent risk that the work placement relationship may be classified as an employment relationship if its training purpose is undermined. Case law is very strict on this point: if the student carries out productive tasks that replace those of a worker, or if there is no genuine supervision, this is deemed to constitute an abuse of the law. Work placements must not be used as a means of filling job posts at reduced cost.

Royal Decree-Law 2/2023 amends the text of the General Social Security Act to enable public authorities to combat fraud: ‘The competent public authorities shall implement specific plans to eradicate Social Security fraud associated with training schemes that serve as a cover for employment.’

If a court rules that the relationship constitutes an employment relationship, the company will not only face a surcharge on benefits in the event of an accident, but also penalties for failure to register the employee in advance, claims for wages in accordance with the collective agreement, and possible late payment surcharges on contributions.

7.  Conclusion: Prevention as a compliance requirement

INSS Management Guideline 12/2026 marks a point of no return. The protection of trainees is not merely symbolic, but effective and rigorous. Companies must accept that the standard of care required for a trainee is, if anything, higher than that for an ordinary worker, due to their inexperience and the training purpose of their placement.

Properly integrating students into the Occupational Health and Safety system and ensuring strict compliance with educational cooperation agreements is no longer merely an ethical recommendation, but an imperative necessity for economic and legal survival. The impact of a benefit surcharge can seriously jeopardise an organisation’s financial viability, particularly given its uninsurable nature.

 

******

More information:

Lupicinio International Law Firm
C/ Villanueva 29
28001 Madrid
P: +34 91 436 00 90