A worker covered by a collective dismissal managed to access early retirement at the age of 64 after Spanish Social Security refused his request, as it understood that he did not have the years of contributions required at the time he was fired.
The decision was eventually reversed by the Superior Court of Justice of Castilla y León, according to Noticias Trabajo, a Spanish website specializing in labor and legal matters, which cites the ruling and highlights a central point: the years of relevant deductions must be measured at the time the pension is requested and not on the date of dismissal.
The case takes place in Spain and involves the application of the transitional regime which, in certain situations linked to dismissals due to ERE, may allow the use of legislation prior to the 2011 reform (Law 27/2011).
The worker in question, born in 1960, was subject to a collective dismissal process (ERE) at the Bankia entity, in December 2011. Even so, he continued to work in the following years, including in a municipality, as interim secretary-intervenor, until August 2023.
When he turned 64, in August 2024, he submitted a request for early retirement, declaring 11,930 days of deductions, equivalent to more than 32 years of contributory career, including the period of military service.
Social Security denial and the point of conflict
According to the same source, Spanish Social Security refused the request with two arguments: on the one hand, that at the date of the ERE (2011) the worker had not reached the 30 years of contributions that it considered required for this route; on the other, the fact that the worker worked after the collective dismissal would preclude the application of the more favorable regime.
The court clarifies when the requirements must be met
The case reached the Superior Court of Justice of Castilla y León, which ruled in favor of the worker. According to Noticias Trabajo, the ruling clarifies that the relevant date to verify compliance with the contribution period is not the date of dismissal, but the date of “hecho causante”, that is, when the worker requests the pension.
Working after dismissal cannot be penalized
Another central point of the decision concerns work after dismissal. As the publication explains, Social Security argued that the professional path after the ERE made it impossible to apply the regulations prior to Law 27/2011.
The Superior Court of Justice rejected this understanding based on the case law of the Supreme Court, which has already ruled on similar situations (for example, in STS no. 364/2022, of April 26; ROJ STS 1670/2022).
Along these lines, looking for work after a collective dismissal should not be treated as penalizing behavior, especially when the worker continues to contribute to the system.
Practical effects of the decision
According to , the court recognized the worker’s right to early retirement at age 64, with effect from August 10, 2024, including the payment of outstanding amounts.
Although decisions of this type always depend on the specific case, the understanding reinforces the idea that, in regimes in which previous legislation applies under transitional rules, the relevant contribution period must be determined at the time of access to the pension, and not “frozen” on the date of dismissal.
And in Portugal?
In Portugal, the old-age pension due to early age in situations of long-term involuntary unemployment is provided for in the unemployment protection regime, approved by Decree-Law No. 220/2006.
Article 57 provides for access after exhaustion of unemployment benefit (or initial social unemployment benefit), with reference ages that depend on the beneficiary’s situation at the time of unemployment: as a rule, access at 62 years of age for those who were 57 years of age or older when they became unemployed; and the possibility of access at age 57 for those who were 52 years of age or older and had at least 22 years of contributory career.
Contrary to what happens in the Spanish jurisprudence cited in this case (linked to the application of previous regulations through transitional regimes in ERE), the Portuguese framework is based on the maintenance of long-term involuntary unemployment until access to the pension, meaning that the impact of possible subsequent work may change, in practice, the applicable regime.
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