THE inspections against dismissals close to retirement promoted by the Ministries of Finance and Labor have disrupted the strategy that many companies still follow to “reward” their most senior workers with an agreed dismissal which allows them to anticipate retirement and receive, in many cases, juicy tax-exempt compensation. A combined piece by María Jesús Montero and Yolanda Díaz through the Inspection which also represents a blow to the ‘golden early retirements» that some companies give to their mid- and senior-level management positions in their later career years.
In recent years, “forced” retirements of the unemployed have fallen, partly because after the financial crisis and bank restructuring, employment regulations ceased. The government’s fear is that these disguised agreements will increase. ” Layoffs. A route that Montero and Díaz they want to cut drynot only because of its cost for public coffers, but also because it comes into direct conflict with the strategy voluntary extension of professional life defended by the head of Inclusion and Social Security, Elma Saiz.
Meanwhile, businesses They look for alternatives to overcome the actions of the Tax and Labor Agency. One of them is to “increase the conflict”, by presenting dismissal letters motivated by reasons which do not allow inspectors to suspect that it is a prior agreement, and urging “beneficiary” workers to demand their dismissal to avoid suspicion. Despite the risk this poses to everyone involved.
Because simulating a dismissal to facilitate the recovery of allowances, pensions or benefit from tax exemptions is a crime which not only results in fines ranging from 7,500 euros to 225,000 euros, depending on the number of workers concerned; It can also result in prison sentences ranging from six months to three years. According to union activists, the majority of companies and workers are canceling their strategies by paying the fine to avoid any prison sentence.
But, even if the most serious cases are associated with genuine labor mafias, who do business by “selling” access to unemployment benefits or pensions to people who have not contributed, the truth is that these are often pacts between companies and workers. so that departures take place under the most advantageous conditions for them.
This includes tax-exempt compensation, receipt of unemployment benefits and allowance for those over 52 in the event of cessation of social security contributions, as well as access to “forced” early retirement without penalty of reducing coefficients. In recent years, for many companies, this solution has become a preferable alternative to “incentive layoffs” due to their lower tax burden: Severance pay is tax-exempt up to 180,000 euros.
Plan B for early retirement
The fines imposed by the government for the dismissal of people over 50 under collective labor regulations make this formula less and less profitable, allowing companies to do without their “seniors”. Apart from the fact that it is a mechanism reserved for large companies, as we have seen in recent years with Telefónica or more recently with Masorange, able to offer advantageous conditions to all those concerned who obtain the approval of the unions.
On the other hand, there is an increase in individual dismissals (mostly disciplinary) which, according to the Inspectorate, are resolved peacefully through conciliation agreements. According to estimates by some law firms, up to 20% of layoffs could actually correspond to “disguised resignations”, carried out largely by older workers with whom the company negotiates directly.
The government does not want this to become a “plan B” allowing companies to finance private workforce adjustment agreements with public money. Even less to the detriment of a system designed to protect the long-term unemployed. And the Ministries of Finance and Labor are not the only ones to have detected an increase in these practices: it has also been noted by law firms who report to their clients the increase in tax inspections and work in progress , And the risks of sanctions, even prison sentences, to which they are exposed. So why do they do it?
In some cases, these are companies in difficulty who wish to save the cost of a traditional workforce adjustment (such as a collective layoff). This is why they question workers closest to retirement age and offer compensation lower than what would correspond to their seniority in exchange for early access to retirement, according to the “forced early retirement” model. », in which the reducing coefficients penalize less. These cases are easy to detect because the compensation is meager, The dismissal is poorly justified and, despite this, the worker does not report the dismissal.
These are also the ones that are usually judged, because the company is not even able to meet the cost of the sanction imposed by the Treasury or the Labor and Social Security Inspectorate, according to an analysis of the most recent case law produced by the company BDO which published “elEconomista.es”.
However, other cases are justified as a “reward” for the worker and involve compensation that may exceed the legal ceiling that would be paid in the event of dismissal and, as we have said, is exempt from income tax. income of natural persons for amounts which do not exceed 180,000 euros.
How to stop an upward trend?
These processes fall into the category of “pre-retirement”: the worker does not retire immediately after the end of the employment relationship, but spends a period of inactivity and is registered as a “supposed” job seeker in public services of employment until reach the minimum age to access early retirementa period during which you are entitled to benefits and subsidies, which also produces a cost for the SEPE.
These conditions explain why the simulation of a dismissal is particularly advantageous for workers with a long career in the company in positions of responsibility, who thus obtain remuneration much higher than that which they would obtain even ifI was included in the collective layoffs.
Some union activists, like Inigo Sagardoypropose a solution which would consist of regulating the taxation of voluntary agreement compensation in a more advantageous manner to bring it closer to that of severance pay, or even allowing access to unemployment benefits. In this way, businesses and workers would have more guarantees in the processwhile the seconds would have a support for active employment policieswhich they currently lack, to be able to integrate the labor market, which, in addition to discouraging fraud consisting of simulating a dismissal, would reduce the cost in terms of pensions.
But the government does not seem willing to put this issue on the table for social dialogue or to reduce the tax burden of resignations. believes that the volume of resignations and dismissals responds to other causes and does not support a reform which risk of “making more flexible” a case of fraud. His commitment to promoting inspections is, for the moment, the only one he has succeeded in.
