An interim worker at the Cántabro Institute of Social Services was forced to leave at the age of 65, despite not meeting the conditions to access 100% of her contributory pension. The Superior Court of Justice of Cantabria considered that the termination of the contract constituted an unfounded dismissal and set compensation of 3,215 euros, according to Noticias Trabajo, a Spanish website specializing in legal and labor matters, leaving the Administration obliged to choose between reinstatement of the worker or pay this amount.
According to the publication, the Administration supported the dismissal in clause of the VIII Collective Agreement of labor personnel in Cantabria.
This rule, published in the Boletín Oficial de Cantabria, provides for mandatory retirement when the worker reaches the legal retirement age defined by Social Security.
The court understood, however, that the clause could not be applied automatically, ignoring the national framework that regulates forced retirement.
Mandatory retirement without 100% pension entitlement
The worker had worked as a socio-sanitary technician since 2020, with a daily salary of R$68.77, which corresponded to around R$2,060 per month. The last contract was interim replacement, to temporarily occupy the position of a member suspended following a disciplinary process, according to the same publication.
In August 2024, the General Directorate of Public Service informed him that his departure would be imposed under mandatory retirement, setting the termination date for October of the same year, according to Noticias Trabajo, which refers to an amendment to the collective agreement.
The worker contested, claiming that, according to information from Spanish Social Security and the legal retirement age calendar, she would only reach the ordinary age applicable to her case in the summer of 2026, at 66 years and 10 months. In Spain, the retirement age varies according to the years of contribution and, for those who do not meet the minimum required to retire at 65, the ordinary age is higher.
Court rejects the Administration’s interpretation
Despite the allegations, the employer went ahead with the termination of the contract and announced the departure as “retirement”. Later, in court, he changed the reasoning to “expiry of the fixed-term contract”, invoking the end of the substitution.
The court rejected this thesis, noting that the post holder only returned to service in December 2024, after the interim leave, and therefore there was no basis for terminating the contract on that date, according to the report.
The decision also highlighted that collective agreements must respect the Workers’ Statute. Additional Provision 10 provides that forced retirement clauses can only operate, as a rule, from the age of 68 and when the worker is entitled to 100% of the contributory pension, in addition to being associated with employment policy objectives. For the court, these assumptions were not met in the case under examination.
With this framework, the Superior Court of Justice of Cantabria confirmed the unfounded dismissal.
The regional government was ordered to choose between the reinstatement of the worker or the payment of the compensation established, under the general terms of the unfounded dismissal regime. The decision may also allow appeal, in accordance with the applicable procedural rules.
And in Portugal?
In Portugal, the reality is different. In the public sector, the General Labor Law in Public Functions provides that the public employment relationship expires upon retirement/retirement or when the worker turns 70, with the possibility of maintenance only in exceptional and duly substantiated situations.
In the private sector, age does not function as an automatic “trigger” for leaving, but the CLT provides that the contract becomes a fixed-term contract if the worker remains in service 30 days after retirement due to age and also when he reaches 70 years of age without retirement, changing the termination regime.
In parallel, the Labor Code enshrines the principle of equal access to employment and work and includes age among the protected factors, preventing a worker from being harmed solely for this reason.
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