La prejubilación en el sector bancarioimpacto de la crisis económica en las extinciones de la relación laboral en el sector financiero español

Résumé

This doctoral thesis aims to offer answers to the unresolved questions raised by workers in the Spanish financial sector, in terms of early retirement, regarding both Social Security and tax fields. To that end, it has been departed from the worldwide economic crisis started in 2007, which was the trigger of concentration processes of the bank sector and its resulting personnel reorganisation. It seemed appropriate to study the different modalities of access to the retirement pension, specially with regard to early retirement, as it is the benefit that normally puts end to early retirement period, focusing the study in the favoritism between anticipation due to both voluntary and involuntary reasons, because the effects that both make in the pension and the applicable tax law to the received quantities are important and transcendent. Early retirement, heart of this thesis, is not regulated by any law, which is why its study has been addressed, taking into account scientific teaching, and, above all, the jurisprudence of the Social Chamber of Supreme Court and High Courts of Justice. Interesting aspects are addressed, distinguishing the early retirement negotiated individually from that which originates in a collective measure, and, singularly, a study of the early retirement agreement, its nature and all kinds of effects, both labour and economic. It has been profusely examinated the use of early retirement as an instrument for reorganise the entities staffs, either by means of collective dismissals or collective company agreements and agreements for the termination of employment contract ex article 49.1.a) ET, with the analysis of the mandatory special agreement with the Social Security signed by every early-retired person. It has been also considered indispensable a study of the derogated tax law of the early retirement pact, the different consequences that imply if it is considered a voluntary or involuntary expiration, as it would be a collective or objective dismissal, emphasising the dubious interpretation that the Chamber N°3 of Supreme Court carries out for understanding and delimiting the tax dismissal significance of article 7.e) LIRPF. It has also been studied both the regular and irregular nature of the perceived compensation by the early-retired person, just as the exclusive or incoming character of it. On the company pension plan, the different ways of receiving it, its private or marital property nature, as well as the implications of its outsourcing through an insurance contract are studied. By studying this thesis we could infer the negative affectation that, for those who are early retiring, it has meant the different modifications that have been introduced in the Social Security benefits, aimed at achieving a real and effective cutback of the pension amount; just as in the collective dismissal reorganisation and its consequences, to which are joined the Law Tax modifications in relation to the fastening or no fastening to the IRPF and its grade of the perceived quantities on the occasion of the early retirement. These changes drive companies to harden the economic conditions of the early retirements, aiming at a strict application of the law. Among other conclusions of this research, it si worth stating the need for the legislator to include early retirement as a new Social Security benefit, seeking the protection of elderly workers close to the ordinary retirement age who hardly re-enter the labor market, while satisfying the timely return of expenditure that their early retirement entails for the public coffers.