Special Social Security Agreement for Workers Over 55 in a Collective Redundancy Process (ERE): Who Is Ultimately Responsible?

The management of collective redundancies does not end with the termination of employment contracts. In certain situations, particularly when they affect employees aged 55 or over, the company must assume additional obligations aimed at protecting their future Social Security benefits.

A recent Supreme Court ruling (STS 207/2026, dated 25 February) has once again highlighted one of these obligations: the requirement to enter into a special Social Security agreement for certain employees affected by a collective redundancy process (ERE).

The ruling clarifies an important practical issue: if the company fails to fulfil its obligation to arrange the agreement and the employee also fails to request it within the legal deadline, can the General Treasury of Social Security (TGSS) be required to act ex officio?

The Supreme Court’s answer is clear: no.

What is the special agreement for employees over 55?

The special agreement is a mechanism designed to prevent certain employees approaching retirement from seeing their future pension affected as a result of a collective redundancy.

Where the legal requirements are met, the company must finance the corresponding Social Security contributions through a special agreement, thereby ensuring the continuity of contributions for a specified period.

This measure is particularly relevant for individuals who face greater difficulties re-entering the labour market and who are at an advanced stage of their professional careers.

The case analysed by the Supreme Court

The ruling arose from a collective redundancy procedure affecting several employees over the age of 55.

Following the termination of the employment contracts:

• The company did not apply for the special agreement.
• The affected employee also failed to exercise her right to request it within the six-month legal deadline.
• Subsequently, liability was claimed against the company, the INSS and the TGSS.

Previous court decisions had gone so far as to attribute certain responsibilities to the General Treasury of Social Security. However, the Supreme Court has corrected that interpretation.

 

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The TGSS has no obligation to act ex officio

The central issue addressed by the ruling is the role of the TGSS in this procedure.

According to the Supreme Court, current legislation places the obligation to request the agreement on the employer and, alternatively, allows the employee to request it personally.

However, at no point does the law impose on the TGSS any obligation to promote, initiate or formalise the agreement on its own initiative when none of the authorised parties has requested it.

The role of the Treasury is limited to:

• Entering into the agreement when it receives a valid application.
• Managing the collection and contribution obligations arising from the agreement thereafter.

Therefore, the TGSS cannot be held responsible for the employer’s failure to comply or for the employee’s failure to act within the legally established deadlines.

An important warning for employers and employees

Beyond the strictly procedural aspect, the ruling contains an important practical lesson.

The Supreme Court reminds us that the protection afforded to employees over the age of 55 requires diligent action by the parties involved.

In particular:

For employers

The obligation to properly arrange the special agreement remains fully enforceable.

The fact that the TGSS assumes no responsibility does not eliminate the potential consequences arising from the employer’s non-compliance, especially where this may affect the employee’s future Social Security benefits.

For employees

The ruling highlights the importance of monitoring legal deadlines.

If the company does not formalise the agreement, the legislation allows the employee to request it personally within six months of receiving individual notice of dismissal.

Allowing this deadline to expire may significantly hinder the protection of the contribution rights that the agreement is intended to preserve.

The importance of proper planning in collective redundancies

Corporate restructuring processes generate employment and Social Security obligations that extend far beyond the termination of employment contracts.

The Supreme Court ruling reinforces a principle that is particularly relevant in practice: Social Security authorities are not required to correct the parties’ failures on their own initiative.

For this reason, proper legal planning of collective redundancies is essential to identify obligations, comply with legal deadlines and avoid future liabilities for both the company and the employees concerned.

Is your company considering a restructuring process or collective redundancy?

At Adlanter, we support companies throughout all stages of restructuring and collective redundancy processes, providing specialised advice on employment and Social Security matters.

Our employment law team analyses each operation from a preventive perspective, helping companies identify risks, comply with legal obligations and ensure maximum legal certainty in decision-making.