The Labor Inspectorate is mobilizing and increasing its interventions in the face of alleged increase in so-called pension agreementswhich are dismissals agreed individually between the company and a worker close to retirement, simulating unfair dismissal. Behind this fraudulent separation agreement lies a series of social benefits that employee chains and labor inspectors have been monitoring with increasing intensity in recent months. The worker receives the corresponding severance pay, tax-exempt up to 180,000 euros.. Opting out allows you to receive unemployment benefits for a maximum of two years. Thanks to this practice, the worker leaves the labor market earlier and saves pension reductions for early retirement.
From the BDO Abogados firm they point out that it is very common for companies to look for different layoff alternatives for older workers, those close to retirement age. “One of the Opt-out options are more attractive and gaining popularity Both for companies and for the workers themselves, labor agreements include retirement as part of the exit process,” explains Montse Rodríguez Viñas, labor managing partner of the aforementioned company.
The labor expert emphasizes that “the legal and fiscal complexity” which revolves around these separations “has generated controversies, in particular with regard to the taxation of the agreed sums”. As published elEconomista.esalso the Tax agency A year ago, it launched a massive campaign to control unfair dismissals, suspected of hiding agreements between the company and the worker. In accordance with the tax provisions in force, Compensation resulting from dismissal is exempt from income tax up to 180,000 euros. If the case is agreed, it is taxed.
The firm highlights the tax advantages before accessing retirement. “Taking into account this body of legislation, carrying out the dismissal of people close to retirement age through an agreed dismissal allows the worker not only to receive the agreed compensation, exempt from tax, within the limits established legal norms”, they emphasize, “It also gives you the right to access unemployment benefits for the necessary period until you reach the required retirement age”they close.
As these media outlets have reported, involuntary or forced early retirements have plummeted over the past decade. This is the case of people who link the receipt of unemployment benefits or unemployment benefits to the pension, accessing it early thanks to the early retirement modality. The 75% reduction in these cases (from 55,000 in 2015 to 14,000 in 2023) would be due to the social shield deployed in the pandemic crisis, which prevented the massive destruction of jobs. The increase in negotiated layoffs means that older workers close to retirement avoid involuntary early retirement and strive to link the receipt of unemployment benefits to the retirement pension at ordinary age, avoiding reducing the coefficients.
Legal implications and fines
Simulating unfair dismissal with an implicit agreement between the company and the worker makes sense legal implications arising from tax non-compliance –collection exempt from compensation–, and at the level of work and social security –inappropriate collection of unemployment benefits–. “Labour legislation considers this act a very serious offense,” says Rodríguez Viñas. The sanction would range from 7,501 euros to 225,018 euros and the company would be directly responsible for the restitution of sums unduly received by the worker, provided that there is no “fraud or fault” of the company, we detail.
Termination agreements close to retirement are also criminalized. Article 307, third of the Penal Code, makes it an offense to obtain for oneself or others the enjoyment of Social Security benefits by simulation, false declaration or conscious concealment of information, explains BDO Abogados. “In the context of exit agreements which result in layoffs, this legislation becomes relevant,” underlines the associate manager of Laboral.
A businessman and a worker appear as co-perpetrators of the incident: the first collaborates or facilitates the illegal action, and the second unduly reaps the benefits. The penalties in these procedures are in most cases less than 2 years in prison and sometimes only 6 months in prison, even when the fraud exceeds 1 million euros, as is the case of certain fictitious companies to collect the advantage.
After an analysis of the multiple convictions of the criminal court, the conclusion is that people accused of fraud in the receipt of benefits pursuant to article 303 of the Penal Code are in most cases insolvent people. THE Solvent businesses choose to face claims of the Treasury or the General Treasury of Social Security (TGSS), as well as for the payment of fines from the Labor Inspectorates and the Treasury, in order to avoid criminal prosecution.
The conclusion of the study of more than 50 convictions of the criminal court is that article 307 of the Penal Code constitutes in practice a very effective threat for companies to pay the defrauded sums when it comes to solvent companies. When the TGSS is involved in a case of unemployment benefit fraud, several judgments reject this fraud, it being understood that it must be fully proven, with regard to the principle of presumption of innocence.
