Las obligaciones empresariales para la protección de las personas trabajadoras maduras en los despidos colectivos

Abstract

The dissertation has dealt with the impact of two closely related circumstances common to all people in the field of collective redundancies: age and work. When these two elements are combined, it is found that older age is inversely proportional to employability. Despite this, the sustainability of our pension system requires higher contributions and a gradual delay in the retirement age. Several studies have analysed the legal regime of collective redundancies and have focused on the phenomenon of "ageing" and the problems associated with it. However, a comprehensive and systematised approach to the different legal instruments that have been established by the legislator in the legal regime of collective dismissal in order to protect the elderly affected by it was still pending. To this end, as a working method, it has been decided to develop each of the main lines of research in separate chapters. Firstly, attention has been paid to the repercussions that age has on the permanence of the employee in our labour market and to the fight against age discrimination, either through legal provisions or through the doctrine of the Courts, including the treatment given by the Court of Justice of the European Union. To conclude the first chapter, it has been appropriate to provide a brief overview of the essential features of the legal regime of collective redundancies, which sets the following sections of the dissertation in the right context. The second chapter refers to the financial contribution to be made to the Public Treasury by companies or groups of companies that make profits and dismiss people over the age of fifty. This is a legal institution, initially created "ad hoc" as a consequence of the restructuring announced by Telefónica in 2011, as it focused on mature people, but which, through successive reforms, has been broadening its scope. The special Social Security agreement has been the subject of study in chapter three, where we share the opinion of those authors who have previously analysed this figure in the sense that it fits with difficulty into the concept of "situation assimilated to be registered in Social Security" and into the traditional notion of special agreement. It is a means of insurance covering certain contingencies, the cost of which is shared in different phases between the employer and the employee, and is voluntary for the latter. The requirements to be met by the company are not exhausted in the previous ones and are also based on the respect of the priority of permanence in favour of mature people, which can be agreed to by collective agreement or during the consultation period of the collective dismissal, on the one hand, and on the incorporation, as a social measure that tries to reduce the negative effects of the dismissal, of an outplacement plan, on the other hand. Precisely, the fourth chapter will critically study the regulation of both figures. As an epilogue to the obligations described above, the fifth chapter is reserved for a measure that does not have the status of an obligation as such, but which is an ever-present feature of all corporate restructuring: early retirement. In the chapters devoted to the contribution to the Treasury, the special Social Security agreement and the outplacement plan, a proposal has been put forward in favour of an alternative regulation or the introduction of certain changes in the current regulation of each of these institutions, in order to offer a much more coordinated, simple and systematised treatment. All of this is recapitulated in a much more harmonised way in the final conclusions of the dissertation. The methodological approach has been based on the study of the most authoritative doctrine, the applicable regulations, comparative law in certain institutions and the various court decisions that have shed light on the problems that usually surround labour restructuring through collective redundancies. This systematic approach has been complemented by contact with those responsible for implementing these obligations in the Labour and Social Security Inspectorate, the Directorate General for Employment and the State Public Employment Service.