China – Retirement Age of Female Employees: Judicial Practice, Regional Differences and Future Trends

Introduction

Since 1978, the State Council has distinguished between the retirement ages of female workers and female cadres.[1] After more than 40 years of development, although the traditional boundary between “cadres” and “workers” has been formally abolished and the retirement age is now determined by the nature of the post, there remains a lack of clear standards for classification. This has led to significant divergence in judicial and administrative practice when determining the retirement age of female employees. In practice, in order to reduce employment costs, some employers may adjust an employee’s position before she reaches the age of 50 in an attempt to “reclassify” her retirement age.

1. Judicial Recognition Standards in Different Regions

(1) The Last Labour Contract Before Retirement Shall Prevail

The judicial approach represented by courts in Beijing holds that where an employer adjusts an employee’s position due to work needs, the relevant content of the labour contract may be amended through consultation with the employee. Even where an employee previously held a management position but was later reassigned to a non-management role in a subsequent labour contract ((2021) Jing Xing Shen No. 1138), or where the employee was not appointed to a management or technical position upon reaching the age of 50 ((2024) Jing 02 Xing Zhong No. 860), retirement benefits should still be determined according to the position recorded in the labour contract—namely, retirement at the age of 50.

Even where an employee is recorded as a cadre in personnel files, if it can be determined—based on the employee’s actual job duties, the employer’s internal rules and regulations, and ordinary life experience—that the position is not managerial in nature, the employee should retire as a non-management employee ((2025) Jing 03 Min Zhong No. 9229).

For example, in case (2022) Jing Min Shen No. 1286, although the employer produced an “Employment Contract” to prove the employee’s worker status, the Beijing High People’s Court held that the employer had failed to provide written notice of the removal of the employee from her management position and had not clearly identified her status as a worker. As the parties had not reached a written agreement regarding retirement timing, the employer’s assertion that the employee’s trade union chairmanship had been removed and her worker status restored was held to be unfounded.

(2) Substantive Review in Light of the Existing Position

Based on an analysis of Shanghai case law, where an employee’s position has changed prior to retirement, courts tend to conduct a substantive review of the reasons for the job adjustment (including whether the transfer was malicious) and the actual content of the employee’s work in the new role.

For instance, in judgment (2019) Hu 01 Min Zhong No. 13089, the Shanghai No. 1 Intermediate People’s Court held that the employer had announced the appointment, dismissal, and transfer decision on the same day as termination of the labour contract and had failed to prove the reasonableness of the position adjustment. Conversely, where an employer can demonstrate the legitimacy of the transfer—through board resolutions, fulfilment of notification obligations, and salary arrangements after the transfer ((2022) Hu 0113 Min Chu No. 25963)—or where the adjustment results from significant objective changes, such as the dissolution of a department ((2022) Hu 01 Min Zhong No. 6238), courts are more inclined to recognise retirement based on the adjusted position.

(3) Length-of-Service Requirements for the Current Position

In addition to the above approaches, many provinces and municipalities impose minimum service duration requirements for an employee’s post-transfer position.

For example, Article 2 of Shaanxi Provincial Department of Labour and Social Security Document (2002) No. 77 provides that where an employee is transferred between worker and cadre (technical) positions, the change must be reported in a timely manner to the labour security administrative authority and the pension insurance agency. Where the employee has worked in the new position for one year or more, retirement shall be determined according to the retirement conditions applicable to the new position ((2020) Shaanxi 71 Xing Zhong No. 138).

The Jilin Provincial Department of Human Resources and Social Security holds that the status of female employees should be determined based on the last position held continuously for three years before reaching the age of 50: production positions correspond to worker status, while management positions correspond to cadre status.[2] The Changchun Railway Transport Intermediate Court interpreted this as requiring both the retirement age and job attributes to be assessed according to the “last position held continuously for three years before the age of 50” ((2024) Ji 71 Xing Zhong No. 208).

Liaoning, Zhejiang, and Fujian Provinces further extend the continuous service requirement for management positions to five years. In judgment (2018) Liao 01 Xing Zhong No. 1900, the court cited the 2001 Liaoning Provincial Labour and Social Security Department Notice and held that, as the employee had worked in a management position for less than five years, retirement based on the standard for female cadres was not applicable. Similarly, the Xiaoshan District People’s Court of Hangzhou relied on Zhejiang Labour Administration Document (1996) No. 70 and found that the plaintiff had not worked in a management position for five years prior to reaching the age of 50 ((2023) Zhe 0109 Min Chu No. 3616). The Xiamen Intermediate People’s Court also upheld retirement at age 55 where the employer failed to prove that the employee had not worked in a management position for five consecutive years ((2020) Min 02 Min Zhong No. 5968).

(4) Comparison of Cumulative Service Time in Management and Non-Management Positions

Hunan Province adopts a distinctive approach by assessing whether an employee has worked “long-term” in a management or production position. “Long-term” does not refer to a fixed duration but rather to whether cumulative working time in management positions exceeds that in production roles.

According to the Opinions of Hunan Province on Several Policy Issues Concerning the Improvement of the Basic Pension Insurance System for Enterprise Employees, where cumulative management service exceeds cumulative production service, the employee is deemed to have worked long-term in a management position and should retire at the age of 55. In judgment (2024) Xiang 0423 Min Chu No. 76, the court found that the employee had served nearly 24 years in a management role, far exceeding time spent in production positions, and therefore rejected the employer’s decision to retire the employee at age 50.

However, not all courts in Hunan adopt this approach. In case (2023) Xiang 0104 Min Chu No. 21329, the court directly determined the retirement age based on the position agreed upon by the employer and employee through negotiation.

2. Predicted Trends in Judicial Practice

A review of cases across multiple regions reveals that courts frequently dismiss lawsuits or appeals on the basis that disputes concerning retirement conditions and specific retirement benefits fall outside the scope of labour dispute cases. Many of the cases discussed above involve administrative litigation challenging retirement determinations made by human resources and social security authorities.

On 20 January 2025, the Beijing No. 1 Intermediate People’s Court issued Civil Ruling (2025) Jing 01 Min Zhong No. 591, holding that disputes over whether a labour relationship has been terminated fall within the jurisdiction of the people’s courts under Article 1 of the Supreme People’s Court’s Interpretation on Labour Dispute Cases (I). Accordingly, the first-instance court’s decision to dismiss the case on jurisdictional grounds was overturned.

This suggests that courts may increasingly intervene in disputes concerning retirement age, necessitating more substantive review of retirement-related issues. Factors such as the reasonableness of job transfers, actual job responsibilities, internal company rules, and agreements between employers and employees are likely to become focal points of judicial scrutiny.

3. Forecast of Legislative Trends on Retirement Age

As discussed above, significant regional disparities exist in determining retirement benefits for employees who have undergone job changes. An employee recognised as a cadre in one region may be classified as a worker in another, creating substantial legal uncertainty.

Historically, the distinction in retirement age for female employees was based on differing labour conditions: female workers typically engaged in manual labour, while female cadres performed management and leadership functions.[3] This legislative rationale was reasonable at the time. By 1975, China’s industrial output accounted for 72% of national economic production, while agriculture accounted for only 28%, reflecting rapid industrialisation.[4] Given the labour-intensive nature of manufacturing at the time, a lower retirement age for female workers was understandable.

However, in the current socio-economic context, this identity-based distinction appears increasingly outdated.[5] China is transitioning away from labour-intensive production, with widespread adoption of automation, electrification, and “machine substitution” in high-intensity roles.[6] As physical labour burdens diminish, the original legislative justification for differentiated retirement ages weakens.

Even if differentiated retirement ages remain in the future, classification criteria will likely require updating to reflect labour market developments. With evolving employment structures, current definitions of “management” and “non-management” positions may no longer be suitable. Comparative legal systems in Europe and North America increasingly advocate the dilution of compulsory retirement, the abolition of gender-based retirement age differences, and the promotion of voluntary retirement. China’s retirement regime may gradually move in a similar direction to accommodate demographic and employment realities.

4. Conclusion

This article summarises divergent judicial approaches across regions concerning retirement benefits for employees who have undergone job transfers, based on laws, local regulations, and judicial practice. However, as socio-economic conditions continue to evolve and judicial intervention in retirement disputes increases, approaches to retirement issues—particularly those affecting female employees—are likely to undergo substantial transformation.

Anjie Broad, China, a Transatlantic Law International Affiliated Firm.  

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