“Pre-Pensioner Stability Rights” Extended to Those in the Private Sector, but Conditions Apply

In a recent decision, the Constitutional Court of Colombia clarified the labor protection available to employees approaching pensionable age. Employees of this “pre-pensioner” age are defined as those with less than three years to fulfill the age or contributions requirements for obtaining a pension.

Traditionally, only employees of public entities had so-called “stability rights” derived from their pre-pensioner status. The stability rights gave them protection from dismissal without cause in order to prevent them from being deprived of the necessary income for minimum living conditions. Any such dismissal would result in an order for reinstatement.

The law originally granted this protection to pre-pensioners and other vulnerable groups working for state entities in liquidation, where they were entitled to be the last employees to be retired from service.

Then, through the extension of case law, pre-pensioners of healthy operating state entities and the administration were granted wider stability rights, which prevented their employers from dismissing them without cause. These rights were recognized by the Constitutional Court on the basis that pre-pensioners are a vulnerable group that should be subject to special protection from the state, as mandated by article 13 of the constitution.

In 2016, the Constitutional Court ruled in a landmark decision (decision T-357) on equality grounds that those working in the private sector should also benefit from these pre-pensioner stability rights.

However, a recent decision of the Constitutional Court has emphasized the need for an employee to show the infringement of some other fundamental right, such as economic hardship, in order to obtain an order of reinstatement (decision T-229 of 2017). The Constitutional Court ruled that the mere fact of being a pre-pensioner was not sufficient on its own to justify an order for reinstatement after a unilateral termination without cause of an employment agreement. The defendant in the case avoided a reinstatement order by showing that the pre-pensioner was receiving additional income from other sources.

Comment

It is clear that employees near to their pensionable age have additional protections and, as a consequence, employers may want to verify the age of an employee at the time of engagement and termination. If unilateral termination without cause were necessary, it would also be useful to collect information regarding the additional income that the employee may have in order to prepare for a potential claim.

Despite the extension of pre-pensioners’ stability rights, they are still not as strong as other stability rights such as those applicable to maternity or medical conditions where authorization for termination from the Ministry of Labor is required.

Written by Carolina Camacho and Daniel Pardo of Posse Herrera Ruiz and Roger James of Ogletree Deakins