In Nigeria, it has become common practice to set age restriction in employments, particularly during recruitment process. As a matter of fact, the unwholesome practice has become the norm which, even, government institution saddled with the role of labour/employment regulation, the Ministry of Labour and Productivity, seems not to have a grip on. The Nigerian legal jurisprudence scarcely provide against age discrimination in employment matters as there is no specific legislation on age discrimination in the workplace. The Labour Act, which is the main extant legislative authority with respect to labour matters in Nigeria, only provides against employment of a child or young person; though with some exceptions. The Act does not make provision against age discrimination or ageism with respect to recruitment, retainment or promotion of employees.
Also, section 42 of the Constitution guarantees to every citizen of Nigeria freedom from discrimination on the basis of belonging to a particular community, ethnic group, place of origin, sex, religion or political opinion but without express mentioning of “age”. This this author argues as a big lacuna in our corpus juris which employers – domestic and foreign – who know the illegality of such actions in their homeland, have effortlessly exploited in Nigeria because it is trite, discrimination complained about must emanate from a law in force in Nigeria, or any executive or administrative action of the Government.
It needs not be stressed, the apparent lack of regulation on the part of the government has led, for many years, to local and multinational firms especially banks and other financial institutions pegging employment age(s) in Nigeria to a point of irrationality. Shockingly, some government agencies and parastatals in Nigeria are also in the habit of setting such irrational age limits.
Moreover, recent data from the International Labour Organization estimated youth unemployment rate in Nigeria to be almost 14.2 per cent. According to the source, youth unemployment rate refers to the percentage of the unemployed in the age group of 15 to 24 years as compared to total labour force. Youth unemployment rates are often higher than overall unemployment rates, which is also true in Nigeria that had an approximate 8.24 per cent of general unemployment rate in 2018, 8.1 in 2019 and 14.2 in 2020. One reason for this contrast is that many youth who are under age 24 are studying full-time under the spell of incessant strike actions and are unavailable for work. Of this percentage, the unemployment rate of young people (15-34 years) in 2nd quarter of 2020 was 34.9% while the rate of underemployment for the same age group was 28.2% in 2018. These rates were the highest when compared to other age groupings.
Similarly, the recent agitations by the #EndSARS# protesters have further revealed staggering number of qualified Nigerian youths with no gainful employment and the lethargy/failure of their leaders to address the menace. Hence, the focus of this write up is to turn attention from the perceived inadequacies of the government to other possible arena where protection can be derived. Also, it is to make a case on the need for all stakeholders in the labour industry – including the government and victims of age discrimination practices – to wake up and save the sinking employment boat and the future of the teeming Nigerians, especially the able and qualified youths.
Definition – Discrimination, Employment Discrimination
According to the Black’s Law Dictionary, Ninth Edition, discrimination is defined inter alia, as “differential treatment; especially a failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured.” Hence, age restriction/or discrimination can be described as unjust or prejudicial deprivation or exclusion of a group or class of people from opportunities and privileges as a result of their age.
The International Labour Organisation defined employment discrimination in economic terms, as a “violation of human right that entails a waste of human talents, with detrimental effects on productivity and economic growth, and generates socioeconomic inequalities that undermine social cohesion and solidarity and act as a brake on the reduction of poverty”.
It is settled that employment relations are voluntarily negotiated by parties and therefore principally governed/regulated by the terms set out and agreed by the parties. As established in plethora cases, Courts will always respect the sanctity of such agreement reached by the parties as it favours their inalienable rights and freedom of formation of contracts. Therefore, a party to an employment contract is allowed within the law to regulate the terms and conditions of the agreement himself, as he has the contractual freedom to enter into legal relation with any party he deems fit.
There exist situations that may abound in which there are cogent reasons for certain conditions/requirements in respect of a job. In this regard, employers have the free will to differentiate and determine not only the jobs that are available but the skills, capacities and qualifications that workers require in order to carry out these jobs. For instance, age is a critical factor in football and some other sport contracts. Therefore, it has become an internationally acceptable convention to engage or refuse a footballer/athlete a playing contract on account of his/her age. This, in the real sense, does not amount to discrimination against the older athletes as age in the circumstance may hinder their capacity to execute the contract in the much physically demanding endeavour of the sports or because the particular tournament is targeted towards the development of particular age group e.g tournament for U-17, U-20 and the likes.
In the same vein, some have justified that, in exercising this free will, firms including military and para-military such as the Navy, Police Force, Custom Service, Air Force e.t.c, are in order for setting below 30-year age restrictions for recruitment on the ground that physical/bodily strength is paramount. This, the author of this piece, does not entirely agree with. If such physical/bodily strength is that paramount then no person/officer above age 30 ought to be qualified for appointment as head or into top positions in the firm or force. There are departments such as health, ICT, legal and the likes that do not necessarily require physical strength but experience, intellectual maturity and expertise which can all be possessed by even a 35 or 40-year old. What is more is that some 30-year old and above applicants can be stronger and smarter than even many under 30-year applicants.
As noted by a writer, some other perceived reasons why younger employees are favoured over older employees are because of the assumption that younger persons are more up-to-date and more knowledgeable than older counterparts. Additionally, employers want employees with ‘longer life expectancy’ so that on-the-job training and experience will stay longer within the company or establishment. There is also a psychological front to this employers’ behaviour as they prefer younger persons that may be susceptible to manipulation; Nigeria being an age sensitive country where it is also believed that employing older people may breed friction in the flow of authority (i.e organizational structure of authoritarian-hierarchy). To some extent, these reasons are plausible and the employers need only apply them within the ambit of the law. However, differentiation will automatically become discrimination once that differentiation takes place for an unacceptable reason such as refusing to employ able and qualified persons merely based on age, race, ethnicity, gender or religion. Such considerations are prohibited in most liberal societies and as such, it must be discouraged in our society as well. Where there is any breach of this, there must be legal remedies available to such employees or victims.
AGE DISCRIMINATION IN SOME DEVELOPED COUNTRIES: UNITED KINGDOM, UNITED STATE OF AMERICA
In a bid to adequately solve the challenge of age discrimination, several countries, unlike Nigeria, have enacted special (separate and express) statues to protect its citizens from being deprived of their right to employment as a result of age. In the United Kingdom, United States and South Africa the culture of age discrimination has been legally banned from the socio-economic life. Thus, no employer be it in public or private establishment, can discriminate against a job seeker or (even existing employees) solely based on age.
In the United States, section 621 of the Age Discrimination in Employment Act (Pub. L. 90-202) (ADEA) prohibits discrimination in employment against persons of 40 years of age or older. It further provides that all employers, private and public who have twenty or more employees must comply with this statute. Since its enactment, several sections of the ADEA have been amended to further strengthen the protection of employees against age discrimination. For instance, the Older Workers Benefit Protection Act (Pub. L. 101-433) amended several sections of the ADEA. In addition, section 115 of the Civil Rights Act of 1991 (P.L. 102-166) amended section 7(e) of the ADEA (29 U. S.C. 626(e)).
As it was held in the English case of Reeves v Sanderson Plumbing Products Inc., in cases of race or sex discriminations, the court must look to see whether age discrimination can be inferred by studying practices at the place of employment. In that case, on the testimony of Reeves that Chesnut (his employer) had told him that he ‘was so old he must have come over on the Mayflower’ and that, on another occasion when he was having difficulty starting a machine, that Chesnut told him he ‘was too damn old to do his job’ which was corroborated by another employee Oswalt, who was roughly 24 years younger than Reeves; corroborated that there was an ‘obvious difference’ in how Chesnut treated them. The Supreme Court held that there was sufficient evidence for the jury to find that the respondent, Chesnut had intentionally discriminated. For these reasons, the judgment of Court of Appeals was reversed.
Similarly, a law banning age discrimination in the workplace in the United Kingdom came into force on October 1, 2006: The Employment Equality (Age) Regulations. By virtue of this law, anybody under the age of 65 cannot be denied offer of job or forced to resign from existing employment on account of age. Any deviation can result in liability in damages imposed by the Employment Tribunal or Employment Appeal Tribunal.
As dissected by an author, the rationale for this is the imperative to ensure that no artificial barrier is allowed to preponderate over merit which rarely has anything to do with age.
There is, of course, also the issue of human rights as it is believed that all kinds of discrimination run contrary to the principles of equity and that they promote injustice. This is by virtue of Articles 1, 2, 7 and 23 of the Universal Declaration of Human Rights. The right to secure employment and work without any form of discrimination is a universal fundamental right. It is for these reasons that legislations have been used (in the developed countries) to dissuade the practices of ageism in all its varieties – merit, not age!
AGE DISCRIMINATION LEGAL FRAMEWORK IN NIGERIA
There is yet no specific legislation governing age discrimination in Nigeria. The 1999 Constitution of the Federal Republic of Nigeria (as amended), as the grundnorm and supreme law of the nation, however provides and guarantees the right of a Nigerian citizen against discrimination. Section 42(2) provides thus;
“(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person-
a: be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religion or political opinions are not made subject; or
b: be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religion or political opinions.
(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.”
From the above provision, any law or action which deprives a Nigerian citizen of benefits or rights solely on grounds of sex, religion, place of origin, political opinion or circumstances of birth, is in flagrant breach of the fundamental rights provided and guaranteed by the Constitution. Section 42 (2) which provides against discrimination by reason of circumstances of birth is apposite to the subject of this piece as “circumstances of birth” envisage not only how the birth or form the birth occurred, but also where and when the birth occurred. It may therefore be argued that the proviso protects a citizen from being discriminated against or deprived of opportunities solely on the ground of his/her age. Moreover, such protection under the grundnorm law must not exist as an implied protection but must be manifestly seen to exist with the aid of specific (express) legislation.
Without any form of doubt, any job advert or employer’s decision coloured with inherent undertone calculated to deprive any qualified Nigerian from being gainfully employed merely by reason of his/her age is a flagrant breach of their fundamental rights which are not only basic to humans but which form the bedrock for a free society devoid of forces of unbridled aggression, oppression, repression, authoritarianism for which every victim of such breach can approach the court for protection.
Furthermore, in view of the increasing repressive acts of employers who prescribe ridiculous age requirements as precondition for employment, the Ministry of Labour and Employment issued a National Employment Policy in 2017 in a bid to solve the rising challenge of unemployment and underemployment in Nigeria. Clause 4.11 of the Policy, which relates to equality of opportunity and treatment in access to employment, provides thus;
“1.1 Job advertisement shall reflect the job description and the selection criteria shall principally be related to qualifications, skills, knowledge and experience.
1.2 Job advertisements shall not state any requirement related to sex, age, ethnicity, religion or other personal attributes except where such attribute are inherent requirements for the job”
Although the above policy was meant to solve the existing mischief of age discrimination in the workplace, the policy failed to achieve this feat but left the window open for escape with the words “…except where such attribute are inherent requirements for the job” in 4.11 (1.2).
It is compelling to know, however, that it is under the above constitutional provisions that the Discrimination Against Persons with Disabilities (Prohibition) Act, 2018 was assented to by the President, Major General Muhammadu Buhari on Wednesday 23rd January, 2019. By virtue of this Act, any form of discrimination on ground of disability – by reason of birth or in any other circumstance – constitute a crime that guarantees right to maintain civil action for damages by the person injured against any such defaulter. It is therefore submitted that, just as it is an offence to discriminate against any individual on ground of physical disability, it must be a crime for whosoever – whether private, public or government agencies – to discriminate against able and qualified applicant solely on ground of age. Age requirement as a precondition for employment in Nigeria is unjustifiable and wholly unconstitutional. This submission is premised on the fact that employment opportunities are benefits to which candidates with requisite qualifications, skills, knowledge and experience, are entitled to. Therefore, the disqualification or exclusion of qualified candidates on the sole and unjustifiable ground that he/she is above the age limit – by reason of his/her birth – is a deprivation that must be manifestly protected by express, not implied, legislation such as the enacted Discrimination Against Persons with Disabilities (Prohibition) Act, 2018.
Though an employer has the contractual right to employ any employee of his choice, it is submitted that the right has to be exercised in accordance with the constitution which forbids discrimination against a Nigerian citizen by reason of “circumstance of his/her birth”. This writer therefore holds that below 30-year age requirement as prescribed by various employers from time to time is unconstitutional as it unfairly and unjustly deprive able and qualified citizens access to employment/gainful employment; which whoever has been such deprived should be able to maintain a legal action for damages.
Furthermore, irrational age requirement precondition is a testament to the insensitivity of employers to the predicament of teeming Nigerian youths, especially those in public institutions, who are forced to spend more years studying because of annual ‘festival’ of incessant strike actions.
It is also the conclusion of the author of this piece that, if a graduate can serve in the National Youth Service Corps program at age 30, it amounts to sheer recklessness, lack of sound reasoning and illegality for such a graduate to be deprived of employment/gainful employment based on the fact that he/she is above 30 years.
Therefore, it is a clarion call to the Legislators of the Federal Republic of Nigeria to, as a matter of urgency, enact an express legislation, just as the recent Discrimination Against Persons with Disabilities (Prohibition) Act; that will conveniently put to rest any iota of right employers may seem to possess in setting illegal employment age restrictions.
Finally, there is no better time for this legislation than a time as this where the teeming able and qualified Nigerian youths have found their voices clamouring for good and better governance; irrational age requirement precondition is nothing but an effort to preponderate age over merit. The time to act is now!
*Sholarin David is a Legal Practitioner, Mediator, Writer and Researcher. He is a counsel with Topmarké Attorneys and practices ADR, Commercial and Civil Law, Employment Law, Corporate, and Immigration Law. He can be reached for questions and further comments on email@example.com or 07033726207.