As you may already know, in general, access to retirement is voluntary. This means that, if an employee wants to continue working despite having reached retirement age, his or her company cannot force him or her to retire.
However, collective agreements may include so-called "forced retirement clauses". These clauses do allow the termination of the contract due to the worker's compliance with an age equal to or greater than 68 years, provided that certain requirements are met.
Clauses of collective agreements referring to compliance with the ordinary retirement age
The regulations have been undergoing various changes in criteria regarding the possibility or not of introducing exceptions to the general rule that establishes retirement as a right and not as an obligation.
Law 21/2021, of December 28, on pension reform, and with effect from 01-01-2022, includes some modifications in relation to forced retirement.
The new regulations prohibit clauses of collective agreements that provide for forced retirement of the worker before the age of 68.
Specifically, the
Tenth Additional Provision of the Workers' Statute (ET) establishes that collective agreements may establish clauses that make it possible to terminate the employment contract due to compliance by the
worker aged 68 years or older, provided they meet the following requirements:
- a) The worker affected by the termination of the employment contract must meet the requirements demanded by Social Security regulations to have the right to 100% of the ordinary retirement pension in its contributory form< /b>.
- b) The measure (imposing forced retirement) must be linked, as a coherent objective of employment policy expressed in the collective agreement, to the generational change through the indefinite, full-time hiring of at least one new worker.
Exceptionally, this limit of 68 years may be lowered to the ordinary retirement age when
the employment rate of working women employed persons affiliated with Social Security in any of the economic activities corresponding to the functional scope of the agreement is less than 20% of the people employed in them.
The economic activities that will be taken as a reference to determine compliance with this condition will be defined by the codes of the National Classification of Economic Activities (CNAE) in force at all times, included in the scope of the applicable agreement according to the data provided when registering in the Registry and deposit of collective labor agreements and equality plans (REGCON), in accordance with article 6.2 and annex 1 of Royal Decree 713/ 2010, of May 28, on registration and deposit of collective bargaining agreements and agreements. The Social Security Administration will provide the employment rate of female workers with respect to all employed workers in each of the corresponding CNAE on the date of constitution of the negotiating committee of the agreement.
If your collective agreement has been recently published or modified, check if it includes this possibility and review what obligations it imposes on you.
The application of this exception (to reduce the forced retirement age in the agreement to the ordinary age) will also require compliance with the following requirements:
- a) The person affected by the termination of the employment contract must meet the requirements required by Social Security regulations to be entitled to one hundred percent of the ordinary retirement pension in its contributory form.
- b) In the CNAE to which the person affected by the application of this clause is assigned, there is an employment rate of employees of less than 20 percent of the total number of workers on the effective date of the termination decision. This CNAE will be the one applicable to determine the contribution rates for coverage of contingencies of work accidents and occupational diseases.
- c) Each contractual termination in application of this provision must simultaneously entail the indefinite, full-time hiring of at least one woman in the aforementioned activity.< /li>
The clauses that have been included in the agreements according to current regulations may be applied while they remain in force
The above will only apply to collective agreements signed since January 1, 2022. In collective agreements signed before eriority to this date, the forced retirement clauses may be applied up to 3 years after the end of the initial agreed term of the agreement in question (in accordance with the ninth transitional provision of the ET).
You can contact this professional office for any questions or clarifications you may have in this regard.