Labor Newsletter – February 2021



Extension of the State of Emergency and new restrictions.- The State of National Emergency was extended until March 31, 2021 and new restrictions were established depending on the level of alert of each region, valid from March 1 to March 14, 2021. Some of these restrictions are summarized below:


SUNAFIL may not investigate and sanction facts discussed in the Judiciary.- Through Labor Cassation No. 8389-2018-Moquegua, the Supreme Court established that SUNAFIL must refrain from ruling on alleged administrative infringements if it learns that that on the same case there is a pending judicial proceeding.

 The decision by the court of last resort provides that judicial proceeding shall prevail over the administrative proceeding even if the labor inspection procedure was initiated earlier.

Recording of emails in violation of the right to secrecy and inviolability of communications constitutes prohibited evidence.- Through STC No. 04386-2017-PA/TC-Piura, the Constitutional Court annulled a dismissal having verified that, among other rights, the employer violated the right to secrecy and inviolability of communications by accessing without authorization and in an arbitrary manner the emails from a worker’s institutional email account.

Therefore, the Constitutional Court considered that the recording of the emails constituted prohibited evidence and that the dismissal was null and void.

Constitutional Court departs from binding precedent in labor matters.- In STC N° 02178-2018-PA/TC-Lima, the Constitutional Court departed from the binding precedent laid down in STC N° 04853-2004-AA/TC, which established as a requirement for the admissibility of amparo ordering a reinstatement, that the reinstatement order issued in the first proceedings is previously fulfilled.

In the new judgment, the Constitutional Court pointed out that the aforementioned binding precedent affects the rights of equality, access to justice, due process and jurisdictional protection, since it would be unreasonable and disproportionate to establish as a condition to seek protection through amparo of the prior compliance with a judgment that is considered arbitrary. Therefore, it ordered that an amparo action against the decision of a previous proceeding be admitted for processing, despite the fact that the workers had not been replaced as ordered in the contested judgment.


New regulatory criteria adopted by SUNAFIL.- Among the approved criteria, the most relevant one provides that the special civil construction labor regime will be applied to workers of contractors or subcontractors who: (i) participate in the execution of a work and (ii) whose total value of the work exceeds 50 UIT Tax Units. This, regardless of whether the value of the participation of the contractor or subcontractor in the execution of the work is less than 50 UIT Tax units.


Hazard Identification and Risk Evaluation (IPER) must include the participation of the workers.- This was pointed out in a recent SUNAFIL resolution, which sanctioned with almost S/.10,000.00 to an industrial company that did not accredit the participation of its workers, nor of the members of the Committee on Occupational Safety and Health, in the preparation and approval of the IPER.

Although the company would have filed an IPER with the signatures of some individuals, it was not possible to determine that these signatures correspond to the members of the Committee on Occupational Health and Safety, since the legal representative of the company-who was the one who gave the statement-did not submit any evidentiary document to prove it. Therefore, the lack of participation of the workers in the preparation of this document was qualified as a serious occupational health and safety infringement, equivalent to not carrying out risk assessments and periodic controls of working conditions.

Health standard for collective food services is adopted.- The standard includes the guidelines and general hygiene conditions to be met by establishments that provide collective food services. For this purpose, guidelines are defined with respect to the location, physical structure of the environments, hygienic services and dressing rooms, clothing and health training for food handlers in charge of the employer and other measures to be adopted by the responsible or owners of the establishments, those in charge of providing the service and also by the consumers.

These provisions are binding on natural and legal persons, both public and private, who are involved in collective food services.

The duty to promote mental health is reinforced.- Within the framework of a public policy for the promotion of mental health, it is reinforced that public and private establishments must promote the dissemination of policies, plans, guidelines and programs for mental health.