A former Telefónica employee who took early retirement at age 55 and retired with 40 years of contributions has been denied the reduction of the cut in his pension from 40% to 30%. Although the claim was made twenty years later, the Superior Court of Justice of Castilla y León understands that the decision to abandon working life was voluntary, since the early retirement was requested by him and was not imposed by a collective dismissal.
This man, born in 1943, worked at Telefónica and requested early retirement in June 1998. In this way, he retired early when he was 55 years old, within a program that the company had for permanent employees between 55 and 56 years old.
In June 2003, he requested early retirement from Social Security, providing a company certificate stating that the cause was “voluntary resignation.” In this way, Social Security recognized his retirement at age 60, but with 60% of his regulatory base (the average contribution on which the pension is calculated), of 1,582.46 euros, that is, 949.48 euros per month, when with 40 years of contributions he would have received 100% at the ordinary retirement age, then 65.
The rule that was applied then (can be consulted in this BOE) to those who already contributed to a labor mutual insurance (the system prior to the Social Security of 1967) allowed retirement from the age of 60, but for each year advanced, 8% of the pension was subtracted. Law 35/2002, which was in force when he retired, reduces this cut to 6% as long as the worker had lost his job for reasons beyond his control and had at least 40 years of contributions. In his situation this would mean collecting more per month, about 158 euros per month (when he started collecting the pension).
The worker asked Social Security to treat his departure from the labor market as involuntary and pay him the difference (according to the ruling available in the Judiciary). He alleged that the contracts of the thousands of older Telefónica workers were “adhesion contracts, without the possibility of negotiating the conditions of termination” that hid layoffs to reduce the workforce. Despite this, neither Social Security nor the Social Court number 1 of Salamanca agreed with him.
Outside of an ERE, the Supreme Court considers early retirement voluntary
The TSJ explains that, for the Supreme Court, the termination “has not occurred for reasons attributable to the free will of the worker” when the early retirement comes within an employment regulation file (ERE, a collective dismissal), even if the conditions are accepted, and that outside of an ERE these terminations are considered voluntary. If you look closely, this is the same criterion with which the TSJ of Catalonia recognized involuntary early retirement for a BBVA early retiree, whose departure was part of an ERE.
As the worker took early retirement “outside of an ERE”, the Court understands that this was enough to reject the appeal, since his departure was voluntary. Furthermore, he adds that his departure was not tainted (that is, that he was not deceived or forced).
This has not been the only sentence of this type, since, as has been confirmed NewsWorkthe same court has denied at least eight appeals from Telefónica early retirees from the late 1990s with the same request, most of them from Salamanca.
In this ruling, the important thing is to determine whether the withdrawal to access early retirement is voluntary or involuntary. If we look at other rulings, the Supreme Court ruled in favor of a Bosch worker, who took early retirement by his own decision, but within an ERE, which affected 631 employees. In this case, the cut was lowered from 8% to 6%, since “the option for early retirement has been voluntary, but that does not mean that the termination is.”