The debate on mandatory retirement or forced retirement remains a controversial topic in the labor field. While some sectors see it as a tool to facilitate generational renewal, the Constitutional Chamber has been clear in stating that it violates the right to work.
Position of the Constitutional Chamber
In ruling 001146-1990, dated September 21, 1990, the Constitutional Chamber declared that mandatory retirement is an inhumane punishment that cannot be justified on grounds of unemployment or financial necessity. Additionally, it stated:
"(…) Work is a fundamental human right that should be encouraged (…) It should therefore be understood that using mandatory retirement as an employment policy is unconstitutional, and any introduction of mandatory retirement in a law, agreement, or ruling will violate the right to work enshrined in the Political Constitution. This is because retirement has always been considered a worker's right that, upon reaching the stipulated age, they may freely choose to cease working and begin receiving a pension, without making retirement an obligation for the worker."
Even the Attorney General's Office, which at one point defended mandatory retirement, has changed its stance. In later cases, such as that resolved by ruling 09067-2004, it adopted the Constitutional Chamber's position, reaffirming that the right to work must be guaranteed for all individuals, regardless of age.
This position has been reinforced by the Comprehensive Law for Older Adults, whose Article 4, section (c), states that elderly individuals must enjoy the same rights as other workers.
Opposing Positions
Despite the Constitutional Chamber’s ruling, other countries have recognized the legitimacy of setting a mandatory retirement age, as long as it is based on objective and reasonable grounds.
For instance, the Spanish Constitutional Court, in its ruling 84/2022, dated May 11, 2022, stated:
"(…) An employment policy based on mandatory retirement has also been accepted, allowing legislators to set a maximum retirement age as grounds for terminating an employment relationship because, although it imposes a limitation on some workers’ right to work, it serves to ensure the right to work for others—in other words, it facilitates job distribution or redistribution (…)”
This position is based on the need to redistribute employment and promote the hiring of younger generations. However, in Costa Rica, this justification has not been recognized as valid for imposing mandatory retirement.
Position of the Second Chamber
Despite the repeated jurisprudence of the Constitutional Chamber, the Second Chamber has adopted a different stance on mandatory retirement based on age—or, in other words, dismissal upon reaching a certain age. In ruling 00311-2024, the Second Chamber stated that there is no discrimination when an employment contract is terminated, and the worker is not rehired due to age, provided that the worker was aware of the company’s retirement age policy in advance. Regarding this, the ruling stated:
"(…) The Faculty Contract Renewal Committee reviewed Professor [Name 001]’s history and recommended renewing their contract for five years starting on January 8, 2015; however, it was only extended for four years because the plaintiff was set to reach the retirement age in 2018. The worker was aware of this in advance, in accordance with the defendant’s internal regulations, which they cannot claim ignorance of, nor did they express opposition to the policy at the time. Therefore, this Chamber considers that there is no evidence of age discrimination in the plaintiff’s dismissal, as the Faculty Policy Manual clearly establishes that faculty reappointments depend on the ability to offer insurance beyond the age of 65, which the worker was aware of beforehand, even under these circumstances they signed the corresponding employment contract. Additionally, the regulations regarding faculty retirement age were established in the defendant’s internal policies, which the worker in this case was aware of (…)”
This stance is questionable because it contradicts the Constitutional Chamber’s jurisprudence on a similar issue—mandatory retirement. However, based on the Second Chamber’s ruling, if retirement or dismissal is clearly established from the outset of the employment contract upon reaching a certain age, it could be considered a valid reason for termination for new hires.
How Should Companies Proceed?
Given the situation described above, companies must act cautiously when considering the implementation of a mandatory retirement policy and understand the risks involved. It is important to note that the Second Chamber's position cannot yet be considered established jurisprudence, as there is only one ruling on the matter. In contrast, the Constitutional Chamber’s jurisprudence is binding and has been reaffirmed in multiple rulings that prohibit mandatory retirement. Therefore, companies are advised to:
- - Avoid implementing clauses that mandate forced retirement unless they are willing to accept the risk that such clauses may eventually be declared unconstitutional by the Constitutional Chamber.
- - If establishing a retirement policy for new hires, ensure that it is clearly stated at the beginning of the employment contract and in internal policies, with the understanding that this criterion may be challenged and declared invalid in case of litigation.
- - Differentiate between a voluntary and a mandatory retirement policy, as only the former is compatible with the right to work according to the Constitutional Chamber.
- - Evaluate the risk of lawsuits, as the Constitutional Chamber has consistently prioritized the right to work over corporate policies.
In conclusion, companies wishing to implement mandatory retirement policies must be aware that, although the Second Chamber has issued an isolated ruling that could support such policies, the binding and repeated jurisprudence of the Constitutional Chamber clearly establishes that such measures are unconstitutional. Therefore, acting against this legal precedent carries significant risks.
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