Co-authored by Carolina Camacho and Daniel Pardo of Posse Herrera Ruiz
In a recent decision, the Constitutional Court of Colombia clarified the labor protection available to employees approaching pensionable age. Employees of this pre-pensioner age are defined as those with less than three years to fulfill the age or contributions requirements for obtaining a pension.
Traditionally, only employees of public entities had so-called stability rights derived from their pre-pensioner status. The stability rights gave them protection from dismissal without cause in order to prevent them from being deprived of the necessary income for minimum living conditions. Any such dismissal would result in an order for reinstatement.
The law originally granted this protection to pre-pensioners and other vulnerable groups working for state entities in liquidation, where they were entitled to be the last employees to be retired from service.
Then, through the extension of case law, pre-pensioners of healthy operating state entities and the administration were granted wider stability rights, which prevented their employers from dismissing them without cause. These rights were recognized by the Constitutional Court on the basis that pre-pensioners are a vulnerable group that should be subject to special protection from the state, as mandated by article 13 of the constitution.
In 2016, the Constitutional Court ruled in a landmark decision (decision T-357) on equality grounds that those working in the private sector should also benefit from these pre-pensioner stability rights.
However, a recent decision of the Constitutional Court has emphasized the need for an employee to show the infringement...