The Court confirms that The percentage of reduction in working hours must be agreed, and that the courts cannot impose it without express agreement between the company and the worker.

It is resolved cassation appeal for the unification of doctrine against the ruling of March 15, 2023 issued by the Social Chamber of the TSJ of Madrid (pleading appeal 1385/2022), formulated against ruling no. 35/2022 of the Social Court no. 44 of Madrid.

The worker is a security guard, with more than 37 years of contributions and seniority since 1983. Currently, it provides services on a Madrid Metro line. In September 2021, upon turning 62, he asked the company access partial retirement with a 75% reduction in working hours with effect from October 1, 2021. 

The company denied the request claiming that “Currently the company does not grant any partial retirement”. The State Collective Agreement for security companies is accepted.

The worker filed a lawsuit requesting a declaration of the right to access partial retirement with a reduction in working hours of 75% or, in any case, 50%.The Social Court No. 44 of Madrid recognized his right to partial retirement, setting a reduction of the 50% of the day condemning the company to make this right effective according to the percentage established on the  annual worker's day. 

The company appealed, but The TSJ of Madrid dismissed the appeal.

The company filed an appeal for the unification of doctrine, invoking contradiction with another ruling of the TSJ of Madrid of January 20, 2023, (remedy 331/2022), in which it had been declared that the percentage of reduction in working hours should be set by common agreement between the company and the worker. The Public Prosecutor's Office issued a report favorable to the estimation of the appeal.

The question to be resolved It focuses on the interpretation of article 69 of the State Collective Agreement of security companies, which regulates partial retirement and the replacement contract. 

The Supreme Court recalls its consolidated doctrine on art. 69 of the Collective Agreement:

• The agreement recognizes the generic right to access partial retirement if the legal requirements are met.
• It is mandatory to conclude a full-time relief contract.
• The percentage of reduction in working hours must be set by mutual agreement between the company and the worker (art. 69.2).

The Supreme Court concludes that according to the regulation contained in labor and Social Security standards (art. 215.2 General Law of Social Security and art. 12.6 and 7 of the Workers' Statute),The company is not legally obliged to accept the worker's proposal or to formalize a replacement contract without agreement.

The Supreme Court distinguishes this case from other agreements  that They do expressly impose the business obligation to accept partial retirement(STS 948/2022, of November 30). On the other hand, when the agreement is limited to referring to current legislation without adding additional obligations (STS 534/2020, of June 25), there is no automatic right of the worker nor can business obligations be imposed.

In this case, The agreement is limited to referring to current legislation. Therefore “it cannot be understood that we are dealing with a true and perfect right that is enforceable, with an agreement between the parties to the employment contract being necessary.” The court and the TSJ could not unilaterally set a percentage of reduction in working hours.

Upholds the company's appeal, dismisses and annuls the ruling of the TSJ of Madrid and revokes the ruling of the Social Court No. 44.