TheForced retirement constitutes an exception to the nature of voluntary retirement. In the face of the right to retire, the obligation to stop working is imposed. In the field of private contracting, unlike what happens to civil servants, it was not a peaceful enterprise.
Indeed, in civil servant relations, forced retirement has been a classic, undisputed institution. It has often been linked to being fit to be able to function. Thus, a different compulsory retirement age has been established.
In contrast, in the private sector, forced retirement has historically been justified as an employment policy.
It should be borne in mind that the Workers Act 1980 initially set the maximum working age at 69 years. However, the Transitional Council declared that it is unconstitutional to terminate the employment relationship, directly and without any conditions, at that age, considering that this violates the principle of equality. However, the TCC understood that the said principle is safeguarded when forced retirement is used as an employment policy mechanism, for the purpose of work distribution. Moreover, this use of forced retirement justifies the restriction of the right to work, as long as the pension is guaranteed to workers who have been forced into retirement.
Thus the collective conventions began to contemplate the compulsory retirement of their workers when they had reached the normal retirement age, so long as said retirement was due to employment policies, and not merely to amortization of a job, and this would be ensured. Pension for a retired worker.
As a result, the Consolidated Text of the Labor Act 1995 (TRLET-1995) provided that forced retirement could be used as a tool for implementing employment policy.
However, the Supreme Court, in 2000, softened the interpretation made on the concept of employment policy, by accepting that consumption of jobs can also constitute a measure of employment policy.
In any case, the Royal Decree Law 5/2001 canceled the provision regulating compulsory retirement in TRLET-1995, considering it a tool in the framework of an employment policy inspired by concepts and supported by demographic realities and the labor market. It is clearly outdated. But the repeal of the said provision did not remove the doubt about whether or not collective agreements prohibited the establishment of forced retirement. In fact, contradictory judgments have been made in this regard. Finally, the Supreme Court settled the case in two rulings in 2004, to establish that as of the date of the repeal of the TRLET-1995 clause regulating forced retirement, collective agreements could not contemplate it. Among the arguments used by TS for this purpose, it should be noted that forced retirement goes against the guiding principles of the 1995 Toledo Charter, as these are intended to promote employment beyond the normal retirement age.
Despite this, through Law 14/2005, compulsory retirement was regulated again in TRLET-1995. Thus, it was possible for collective agreements to establish the conditions for compulsory retirement, provided that two conditions are met. On the one hand, compulsory retirement must be linked to objectives consistent with the employment policy stipulated in the collective agreement itself. Moreover, for example, it was pointed out that these goals could consist of improving job stability, converting temporary contracts into indefinite contracts, sustainability of employment, hiring new workers or anything else aimed at enhancing the quality of employment. On the other hand, the worker who has been forced into retirement must have covered the minimum contribution period or for a longer period if so agreed in the collective agreement, and fulfill the other requirements required by the social security legislation for pension entitlement. . In its contribution form.
For its part, Law No. 27/2011 Part Two tightened the requirements mentioned above, by requiring a minimum contribution period that allows the affected worker to apply 80% of the regulatory base for calculating his pension.
But Law 3/2012 amended TRLET-1995 again, this time to consider forced retirement clauses in collective agreements null and void. Additionally, this was certified by TC in 2015.
With the change of government, and TRLET-2015 in effect, Royal Decree Law 28/2018 restored forced retirement, in line with Laws 14/2005 and 27/2011, but tightened one of the criteria, by requiring the aggrieved worker to be entitled to 100% of the normal pension as subject to subscription.
Finally, Law 21/2021 reformed forced retirement again. This time let’s assume, to a large extent, the logic of Royal Decree Law 5/2001 and Law 3/2012.
Now the main goal is to promote the prolongation of working life. To this end, collective agreements can only establish compulsory retirement for workers who have reached the age of 68 or more, provided that they fulfill two conditions. On the one hand, they must meet the requirements of the social security systems to be entitled to receive 100% of the ordinary pension in its contribution method. On the other hand, forced retirement, as a coherent objective of employment policy expressed in the collective agreement, must be linked to generational change through the permanent and full appointment of at least one new worker.
But another goal is needed: to achieve real and effective equality between women and men, and to help overcome occupational segregation by sex. To this end, men are permitted to be forced into retirement at normal retirement age, when the rate of employment of women employed by others affiliated with social security in any of the economic activities corresponding to the functional scope of the Convention is less than 20% of the people employed in it. Thus, forced retirement must simultaneously entail the permanent and full-time appointment of at least one woman.Professor of Labor Law at the University of Deusto