Constitutional Tribunal rules different retirement age for women as non-discriminatory

In response to a request from the Ombudsman, the Polish Constitutional Tribunal ruled on 15 July 2010 that the different statutory retirement age for women (60 years) and men (65 years) in Poland does not contradict the country’s constitutional provisions on gender discrimination. The Tribunal intends to advise parliament to legislate to successively remove the differential, which is generally supported by the trade unions and the public, but not by employer associations.

Background

In 2007 the late Ombudsman (RPO), Janusz Kochanowski, submitted a request (in Polish, 887Kb PDF) to the Polish Constitutional Tribunal asking it to examine the compliance of regulations on the different retirement age of men and women with the Polish Constitution’s provisions on gender discrimination. He referred specifically to the article of the Act on annuities and pensions (in Polish) which states that insured people who were born after 1948 are entitled to a pension on reaching retirement age which, in Poland, is at least 60 years for women and 65 years for men. He argued that within the new pensions system (introducing individual retirement accounts managed by the public pensions system and open retirement funds), women will receive lower pensions than men given the shorter contribution period (the statutory retirement age is lower) and longer lifespan. The effect could thus be interpreted as a violation of the Polish Constitution which prohibits discrimination and provides for equality before the law (article 32), equal rights regardless of gender in family, political, social and economic life (in particular regarding education, employment and promotion), as well as the right to equal compensation for work of similar value and to social security (article 31).

Constitutional Tribunal’s verdict

The primary function of the Constitutional Tribunal is to decide whether legal norms of lower rank conform with national legal norms, which are considered superior (especially the Polish Constitution), and to eliminate any regulations inconsistent with legal system in force.

On 15 July 2010, the Constitutional Tribunal issued a ruling (in Polish) that the different statutory retirement age of women does not contradict Polish constitutional provisions on gender equality. The decision was not unanimous: three out of 12 members of the court (all women) voted against the ruling.

The Constitutional Tribunal subsequently issued a press release (in Polish) stating that women’s lower average allowance is due to many factors but above all to their lower salaries. The Tribunal also pointed out that, according to the Labour Code and previous verdicts of the Supreme Court (SN), a worker cannot be dismissed solely on the grounds of having reached the statutory retirement age. According to the Tribunal court, this means that, after having reached the age of 60 years, women ‘are able to continue their professional activity and to pay contributions that will increase their future pensions’ or ‘to decide to terminate their professional activity, which involves receiving lower allowances, but is compensated by benefits of personal and family nature’.

The difference in the statutory retirement age was interpreted by the Constitutional Tribunal as women’s ‘compensatory privilege’. The reasoning behind this formula is that women are entitled to retire but are not obliged to. As justification for this compensation, the court found ‘differences that are the effect of the special role played by women in society and in families. It concerns, above all, maternal and educational functions in the family and having, at the same time, work and family responsibilities’.

Nevertheless, the Constitutional Tribunal judged that having a different statutory retirement age is not an ‘optimal solution’, given European and international legislation on the subject and social trends. It announced its decision to inform parliament about the advisability of legislation that would successively equalise the statutory retirement age of women and men in Poland. However, the Tribunal did not give any guidelines on either the duration or course of this process.

Opinion on different retirement ages for men and women

The differential retirement age has attracted controversy for some time. Many experts and employer associations such as Employers of Poland (Pracodawcy RP) and the Polish Confederation of Private Employers Lewiatan (PKPP Lewiatan) hoped that the Constitutional Tribunal’s ruling might force legislators to increase the statutory retirement age of women. However, trade unions and the majority of public opinion support a different retirement age.

  • The Independent and Self-Governing Trade Union Solidarity (NSZZ Solidarność) issued an official statement (in Polish) in 2007 in favour of retaining the right of women to decide whether to retire or to continue to work when they reach the age of 60 years.
  • The All-Poland Alliance of Trade Unions (OPZZ) launched a campaign in early 2010 to grant retirement rights to women after 35 years of work (40 years for men), regardless of age (PL1006019I).
  • The results of a public opinion poll (in Polish, 303Kb PDF) carried out by the Public Opinion Research Centre (CBOS) in 2010 indicate that 74% of Poles are against equalising the retirement age for women and men.

Karolina Sztandar-Sztanderska, Institute of Public Affairs

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