Dismissal for pension rights and age limits

Maturity requirements for old-age and early retirement: does the employment relationship cease automatically or can it be retained in service?

Have you acquired the right to early retirement? If you are a private sector employee, you do not have to worry: your company cannot fire you just because you have met retirement requirements. If you are a public employee, however, your administration has the right (not the obligation) to make you stop from the service. If, however, you have reached the requirements for the old-age pension, your administration has even the obligation to stop you from the service if the age limit is exceeded; the same applies if you have completed the requirements for early retirement and have exceeded the age limit set by your system. Even if you are a private sector employee and you have reached the old-age pension requirements you can be fired: however, according to part of the jurisprudence, private sector workers have the right to stay in service up to 70 years and 7 months of age, 71 years from 2019, even against the will of the employer. In this complex and uncertain scenario, there are some collective agreements that provide for the automatic termination of the employment relationship at the end of a given age: are they legitimate? We try to clarify the dismissal for pension rights and age limits.

Index

  • 1 Dismissal for accrual of early retirement requirements: private sector
  • 2 Dismissal for the maturity pension requirements: private sector
  • 3 The clause which provides for automatic redundancy due to age restrictions
  • 4 Dismissal for pension rights and age limits: private sector employees
  • 5 The retirement of public employees
  • 6 Dismissal for accrual of early retirement requirements: public sector
  • 7 Dismissal for reached age limits: public sector

Dismissal for accrual of early retirement requirements: private sector

In most cases, employees in the private sector, unlike public workers, do not run the risk of being dismissed for the maturity of retirement pension requirements, now early retirement.

Dismissal for the maturity pension requirements: private sector

Dismissal for age limits is possible, however, when the requirements for the old-age pension have matured; on this point, however, there are contrasting jurisprudence guidelines:

  • some in favor of the free withdrawal of the company, that is the so-called “ad nutum dismissal”, without justification, to the maturity of the ordinary retirement pension requirements (66 years and 7 months plus 20 years of contributions in 2018, 67 years plus 20 years of contributions since 2019);
  • others instead of accepting the stay at work up to the age of 70 years and 7 months (71 years from 2019).

In detail, if the worker matures the requisites (personal and social security) to access the old-age pension, the employer can withdraw from the contract, even without motivation, but respecting the notice period (even if the right to notice are the rulings of the Cassation contrasting). However, if the worker decides to continue working for up to 70 years and 7 months of age (up to 71 years from 2019), protection against unlawful dismissals operates until this age limit is reached, as provided for by the Fornero law [1].

A well-known judgment of the Court of Cassation [2], however, interprets the normative provision considering the option for the worker to stay in service up to 70 years and 7 months not as a tentative right, but as a possibility granted only by agreement with the employer work.

The clause that provides for automatic dismissal for age limits

In any case, the worker can be dismissed on the basis of age limits and is not entitled to notice if there is a specific contractual clause (provided for by the collective agreement) which provides for the automatic termination of the employment relationship when reaching a certain age ( as recently decided by the Supreme Court [4] ); in this case it is not a matter of a real dismissal, but of the expression of the employer’s will to use a resolutive mechanism provided for in the autonomy of negotiation. The majority jurisprudence, however, does not agree with this (minority) orientation of the Supreme Court, as the causal reasons for the employment relationship are characterized by typicality and taxability, and the automatic resolution, provided for by the collective agreement, for the achievement of a certain age, does not fall under the grounds of dismissal or termination of the relationship provided by law [5] .

The collective agreements which provide for the automatic termination of the employment relationship to 65 years of age are, for example, some national collective agreements of the credit and insurance sector.

Dismissal for pension rights and age limits: employees in the private sector

Summarizing, a private sector employee:

  • he can not be dismissed simply because he has completed the requirements for early retirement;
  • at the age of 65, or the different age limit provided for by the collective agreement, he could be dismissed (with the appropriate termination clause in the ccnl): on this point, however, the guidelines of the jurisprudence do not agree; dismissing at a certain age because of the provisions of the collective agreement would be possible only if the just cause is present, a justified objective or subjective reason;
  • on the other hand, the free withdrawal of the employer at 66 and 7 months of age would seem possible, 67 from 2019 (the requirement will increase by 3 months every two years), if the pension requirements are met (at least 20 years of contributions, plus a check equal to 1.5 times the social allowance if one is subjected to the fully contributory calculation), but also on this point the judgments of the jurisprudence are conflicting: according to one of the guidelines, the worker would still be able to stay at work up to 70 years and 7 months, 71 from 2019 (the requirement will increase by 3 months every two years).

The retirement of public employees

The situation is different for public employees [6]: once the pension requirements are met, in fact, the administration is obliged to stop them from service, if the legal age is also reached, that is the expected age for termination from the order to which the worker belongs. In the event that the legal age is not reached, but the requirements for retirement are perfected, termination is instead at the discretion of the administration.

In detail, the assumption of forced retirement by the public administration is 3:

  • two compulsory, applicable to those who have matured the requirements for the old-age pension, or the right to early retirement, together with the achievement of the legal age limit set by the individual sectors to which they belong;
  • a remittance to the discretion of the administration, aimed at those who have reached the parameters provided for by the Fornero reform [7] for early retirement, without having reached the legal age limit.

Dismissal for accrual of early retirement requirements: public sector

The latter situation, however, has some peculiarities: in fact, the circular on the subject of the public function [6] clarifies that even if the employee has reached the requirements for early retirement (in 2018, 42 years and 10 months of contributions for men and 41 years and 10 months for women), it can be placed at rest only at the age of 62 (the parameter provided by the Fornero reform to receive early treatment without penalties).

Despite the fact that the percentage penalties of the early retirement allowance have been definitively abolished with the Budget Law 2017, the discipline of unilateral termination of the service has not been modified and therefore remains applicable only at the end of the 62nd year of age. In any case, the administration to dismiss has no full discretion but must motivate the choice and stick to certain parameters (for example, the presence of redundancies).

Dismissal for reached age limits: public sector

With regard to assumptions outside the early retirement pension, continuing the employment relationship beyond the legal age limit (or beyond the age for old age treatment) is only allowed to guarantee the maturity of the minimum social security requirements (20 years of contributions) for access to the pension; in any case, you can not exceed the seventieth year of age (currently 70 years and 7 months, based on adjustments to life expectancy).

With regard to the determination of the periods useful for the achievement of the pension, all the accredited seniority must be considered, not only that allocated to the social security management ex Inpdap; in the case of contributions paid in different management, the employee, in order to value them all without charges, for the purposes of the right and the amount of the treatment, can use the totalization or the aggregation of contributions.

Note

[1] DL 201/2011.

[2] Cass. sent. n. 17589/2015.

[3] Cass. sent. n. 1743/2017.

[4] Cass. sent. n. 1743/2017.

[5] Cass. Sent. Cass. n. 10527/2010, n. 28847/2008, n. 13871/2007.

[6] Circ. Min. For Simplification and Public Administration n. 2 of 19/02/2014.

[7] Art. 24, Co. 10-12, DL 201/2011.