The Pre-Retiree and Enhanced Job Security Protection
"Pre-retirees" are public- or private-sector workers who are three (3) years or less away from meeting the age and contribution requirements needed to be granted an old-age or retirement pension.
Enhanced job security means the employer cannot dismiss the employee — and if they do, the dismissal can be challenged through a tutela (constitutional protection action). This legal doctrine rests on the following legal and constitutional grounds:
- Law 790 of 2002 explicitly protects public-sector workers considered pre-retirees.
- Ruling T-357 of 2016 extended that protection to private-sector workers who meet the pre-retiree condition.
- Ruling SU-003 of 2018.
Based on the case law developed on this issue, the requirements for this protection to apply can be summarized as:
- The worker must be three (3) years or less away from meeting the age and contribution requirements for an old-age or retirement pension. This applies to workers contributing to the pay-as-you-go regime (Colpensiones), leaving a gap for workers in the Individual Savings Regime (private funds).
- Even if the pre-retiree condition is met, it's still necessary to check whether ending the employment contract would affect the worker's basic subsistence income, since if their age makes finding new work difficult, they'd be left without their sole source of income to cover their own and their household's basic needs.
- Separately, Ruling SU-003 of 2018 established that this protection also applies to a worker who is short only on the minimum number of weeks of contributions needed for an old-age pension. So if a worker has already met the contribution-weeks requirement but is still short on age, they won't be protected under enhanced job security, since that remaining requirement (age) will be met over time regardless of whether they remain employed.
Enhanced job security, however, doesn't mean these workers are untouchable — it's a guarantee meant to prevent a dismissal from cutting off the worker's path to their old-age pension, without prejudice to the fact that being added to a pension payroll is itself valid grounds for ending the employment contract.
What should be done with current staff covered by this protection whose contracts are fixed-term? Should their contracts be extended?
Our recommendation is to respect the pre-retiree's enhanced job security even under a fixed-term contract if it applies as protection, since the contract's performance can't simply be affected once the agreed or presumed term runs out — because if the worker is dismissed for that reason and it's shown that this affects their basic subsistence income (their salary being their only source of income), reinstatement will be ordered.
Keep in mind that if the worker meets the contribution-weeks requirement but not the age requirement, they are not protected under enhanced job security as a pre-retiree — so if they're under a fixed-term contract, it can be ended when the term expires.
What procedure should be followed to separate employees who have already met the pension requirements?
It's worth noting that until a worker who meets the pension requirements is actually added to a pension fund's payroll, their employment contract cannot be ended or terminated, per numeral 14 of article 62 of the Substantive Labor Code.
Given that, it's essential to VERIFY that the worker has actually been added to the pension fund's payroll before ending the employment contract for just cause.
It isn't enough that the worker has met the requirements to access their pension — they must actually be on the relevant pension fund's payroll. Once that's confirmed, the employment contract can be ended for just cause.
Do you have questions about pre-retirees?
Contact us — at Consejurídico, #WeWantToBeThere
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