How is the retirement age of female employees determined? Should it be 50 years old or 55 years old? The following case of the Jiangsu High People’s Court is worth the attention of employers.
Case overview
From 1989 to 2002, Ms Wu [the full name was not disclosed by the court] worked at a hotel in Nanjing under the ownership of the whole people. Starting from 2009, she entered into employment contracts with several law firms and worked as a lawyer. In April 2018, the law firm where she worked submitted an application to the Nanjing Municipal Human Resources and Social Security Bureau (Nanjing HRSSB) for her retirement at the age of 50.
On 24 May 2018, Nanjing HRSSB rendered a Decision Denying Approval of Retirement. Dissatisfied with the decision, Wu instituted an administrative legal action.
Wu argued that although she worked as a lawyer, her status was actually a worker, which status was also recognised by her employer, and accordingly, her statutory retirement age should be 50.
Nanjing HRSSB argued that all personnel are currently divided into three categories for the purpose of administration of retirement, namely worker, management role and technical role. Pursuant to her employment contract, Wu was a lawyer, a professional technical role. Accordingly, her statutory retirement age should be 55.
Court decision
The courts of first instance and second instance and the retrial court all held that Wu’s retirement age should be 55 years old based on reasons below:
Pursuant to Article 12 of the Implementing Opinions for the Regulations of Jiangsu Province on Basic Endowment Insurance for Enterprise Employees,
female cadres retire at the age of 55 and female workers retire at the age of 50.
Furthermore, female workers who work in a management or technical role before the age of 45, and continue to work in such a role after the age of 45, shall retire at the age of 55.
From 1 February 2009 until the year 2018, when she submitted her application for retirement, Wu worked as a lawyer with different law firms.
Legal professional qualifications fall within the scope of professional qualifications of professional technical personnel and lawyer is a professional technical role.
Wu, as a practising lawyer with legal professional qualifications, worked as a practising lawyer in a technical role both before and after the age of 45.
Accordingly, Nanjing HRSSB was justified to award that Wu, as a female worker in a technical role, should retire at the age of 55.
Takeaways
The issue of whether female employees retire at the age of 50 or 55 years of age has always been a challenge for employers, complicated by the fact that the judicial decision-making approaches in different regions also vary.
In this regard, we recommend that an employer specify the nature of the employee’s position in the employment contract, expressly stating whether it is a management role or professional technical role.
If it is not specified or it is difficult to do so in the employment contract, the nature of various positions can be expressly specified by formulating or revising the rules and regulations through democratic procedures.
With respect to a female employee approaching retirement age, if a potential retirement age dispute could arise, efforts can be made to communicate with the female employee in advance and duly carry out the retirement procedures in light of the approach of the local social security authority.
With respect to a female employee whose status as recorded in the social security system differs from the nature of her actual position, her retirement age must be carefully assessed based on the local judicial decision-making approach.
Business Law Digest is compiled with the assistance of Baker McKenzie. Readers should not act on this information without seeking professional legal advice.
You can contact Baker McKenzie by e-mailing Howard Wu (Shanghai) at howard.wu@bakermckenzie.com
