Can an employment contract be terminated for an employee of pre-retirement age?

Pursuant to Article 39 of the Labour Code, an employer may not terminate the employment contract of an employee who is less than four years away from reaching retirement age if the period of employment allows them to obtain the right to a pension upon reaching that age.

Pre-retirement protection is excluded if:

• the employee has become entitled to a pension due to total incapacity for work (Article 40 of the Labour Code),
• the termination is due to the employer’s bankruptcy or liquidation (Article 41 § 1 of the Labour Code).

Pre-retirement protection under Article 39 of the Labour Code applies only to termination of an employment contract and not to other forms of termination of employment. Therefore, an employee under pre-retirement protection may be dismissed for the reasons specified in Article 52 of the Labour Code (i.e. e.g. due to a serious breach of their basic employee obligations) or for reasons specified in Article 53 of the Labour Code (i.e. for example, due to incapacity for work as a result of an illness lasting longer than the total period of receiving remuneration and sickness benefit for this reason and receiving rehabilitation benefit for the first 3 months).

The Supreme Court has repeatedly pointed out in its rulings that the prohibition on termination of an employment contract referred to in Article 39 of the Labour Code does not apply to cases where the notice of termination of the employment contract was delivered to the employee before he or she reached the age guaranteeing pre-retirement protection, even if the employee reached that age during the notice period.

Therefore, if the notice of termination of the employment contract was delivered to the employee before the employee reached the so-called protection period (i.e. before reaching the age of 56 for women and/or 61 for men), which is 4 years before reaching retirement age, then even though the effect of the termination in the form of termination of employment would occur after the commencement of this protection period, the termination will not violate Article 39 of the Labour Code. This is confirmed, in particular, by the judgment of the Supreme Court of 7 April 1999, file ref. no. I PKN 643/98, and the judgment of the Supreme Court of 19 May 1992, file ref. no. I PRN 19/92.

The Supreme Court ruled that the interpretation of Article 39 of the Labour Code, which leads to a specific identification of the termination of an employment contract with its dissolution, is incorrect, which, in the opinion of the Supreme Court, would be unjustified in view of the wording of Article 39 of the Labour Code, in which the legislator clearly separated the above-mentioned conceptual categories.

It should also be noted that the pre-retirement protection referred to in Article 39 of the Labour Code is available to employees not only four years before they reach the so-called basic retirement age, but also four years before they become eligible for a bridging pension. For example, in its judgment of 6 November 2019, ref. no. III PK 145/18, the Supreme Court indicated that reaching the age entitling an employee to a bridging pension is tantamount to reaching retirement age within the meaning of Article 39 of the Labour Code.