2023-04-23 00:14:02
Sunday, April 23, 2023, 00:14
Can the company force me to request retirement? The answer is yes, you can. But not in any way. This is an issue that has been subject to several legal changes, the last of which is the pension reform.
Initially, the 1980 Workers’ Statute stated that “in collective bargaining, retirement ages may be freely agreed, without prejudice to the provisions on Social Security for these purposes.” And what was the arrangement? Well, the establishment of 69 years as the maximum age until which one could work. Once fulfilled, for the company to be able to ask a worker to retire, all that was necessary was for the worker to be entitled to a pension. In other words, it was enough that they had at least fifteen years of contribution and that two of them were within the last fifteen of activity. In other words, the Law guaranteed the transition to retirement, but did not pay attention to its economic conditions. It did not matter what percentage of the regulatory base would be applied to the calculation of the pension of the worker forced to retire, which can be very different depending on the worker’s professional career.
However, demographic changes have made it interesting today for workers to delay their retirement. Hence, the 2012 labor reform prohibited company agreements from establishing clauses that would make it possible to terminate the employment contract based on the age of the worker. In 2018 the Government of Pedro Sánchez recovered that possibility but hardening the previous conditions. On the one hand, following what the courts have indicated for years, it established that forced retirement should serve to improve the working conditions of another employee (and not to seek cheaper contracts) and restricted its application to workers who can access 100% from its regulatory base. This means that in 2023 it will only be applicable to those over 65 who have also contributed for at least 37 years and nine months.
Finally, in December 2021, among the measures taken to strengthen the public pension system, it was established that forced retirement is only possible if, in addition to guaranteeing 100% of the worker’s pension, it is established in the company agreement, the employee is at least 68 years old and will mean the indefinite, full-time hiring of another person that allows for generational change.
However, the text also indicates an exception that facilitates forced retirement for workers under the age of 68: when the number of women affiliated to Social Security is below 20% in the activity that the company is included in. If this is the case and retirement gives way to the hiring of a woman, we would not have to wait for the person who currently occupies the position to turn 68.
It is also important to note that all of the above is applicable to agreements signed as of 2022, but those dated before enjoy a moratorium and until 2024 allow workers aged 65 to retire who meet the contribution requirements in force at any given time to retire. achieve 100% of the pension.
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