This summary of age discrimination law in Ghana has been prepared by ENS Ghana https://www.ensafrica.com/.
OVERVIEW
There is no specific legislation on age discrimination under Ghanaian law. There are however, laws and policy documents that protect persons against age discrimination in Ghana. Such frameworks include:
the 1992 Constitution of Ghana (the “Constitution”);
the Labour Act, 2003 Act (651) (the “Labour Act”);
the Children’s Act, 1998 (Act 560) (the “Children’s Act”); and
the National Ageing Policy issued in July 2010 by the Ministry of Gender, Children and Social Protection (the “National Ageing Policy”).
The Constitution
The Constitution upholds the cardinal principle of equality and prohibits all forms of discrimination against persons. According to the Constitution, every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms contained in the Constitution. However such rights and freedoms are subject to the respect for the rights and freedoms of others and for public interest.
The Constitution defines discrimination as giving different treatment to different persons attributable only or mainly to their respective descriptions by race, place of origin, political opinions, colour, gender, occupation, religion or creed, whereby persons of one description are subjected to disabilities or restrictions to which persons of another description are not made subject or are granted privileges or advantages which are not granted to persons of another description. Age discrimination thus falls within the definition of discrimination. We however note that the Constitution provides for reasonable exemptions to this general principle of discouraging discrimination. Article 17(4) of the Constitution allows Parliament to enact laws that are reasonably necessary to provide for:
the implementation of policies and programmes aimed at redressing social, economic or educational imbalance in Ghanaian society;
matters relating to the adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law;
the imposition of restrictions on the acquisition of land by persons who are not citizens of Ghana or on the political and economic activities of such persons and for other matters relating to such persons; or
making different provision for different communities having regard for their special circumstances and not being a provision which is inconsistent with the spirit of the Constitution.
In line with this, there are certain age restrictions on particular matters within the 1992 Constitution. For instance, the minimum age for appointment as President or Parliamentarian are set at 40 years and 21 years respectively. Additionally the voting age for Ghana citizens for public elections and referenda is 18 years.
The Labour Act
The Labour Act makes specific provisions for the protection of certain employees. The Labour Act prohibits a young person (defined as an individual above 18 but under 21 of age) from engaging in any type of employment which is likely to expose that person to any physical or moral hazard. Additionally, employers are prohibited from employing young persons to work in an underground mine work. The Labour Act has specific provisions on the employment of young persons in Ghana. The Labour Act provides that:
young persons must not be employed in hazardous work;
an employer must receive medical certification from a medical practitioner that a young person is in good health before employing that person in any form of work; and
an employer shall keep a register of all young persons in an industrial undertaking including their dates of birth or their apparent ages. Industrial undertaking is defined to include mines, quarries, the manufacturing sector, building and civil engineering work among others.
The Children’s Act
The Children’s Act defines a child as a person below 18 years. The Children’s Act provides rules for employment of a child. Some of the provisions include:
no person shall engage a child in night work from 8 o’clock in the evening to 6 o’clock in the morning;
the minimum age for the engagement of a child in light work shall be 13 years. Light work is defined as work which is unlikely to be harmful to the health or the development of the child and does not affect the child’s attendance at school or the capacity of the child to benefit from school work;
the minimum age for the engagement of a person in hazardous work is 18 years.
The National Ageing Policy
The National Ageing Policy is a national policy to achieve the objective of the overall social, economic and cultural re-integration of older persons into mainstream society, to enable them as far as practicable to participate fully in national development. It sets as an objective, the elimination of all forms of violence and discrimination against older persons (persons who are 60 years and above).
This is guaranteed by tasking the Ghanaian government to ensure, among others:
1. that necessary measures are put in place to ensure that issues of older persons are mainstreamed into the national development process;
2. that older persons have access to education and training;
3. that older persons will be encouraged to participate in the planning, implementation, monitoring and evaluation of poverty reduction programmes to ensure that their specific needs are adequately incorporated in anti-poverty programmes; and
4. that programmes are initiated to improve opportunities for older persons to access employment and discourage discrimination on the basis of old age during recruitment, promotion and retrenchment.
The National Ageing Policy acknowledges that older persons are often denied access to employment opportunities and are often the first to be targeted during periods of retrenchment. However, the implementation of the policy has been relatively slow and The Ghana National Council on Aging, the proposed coordinating body for the successful implementation of the policy, is yet to be established.
WHO IS COVERED
The Constitution provides a blanket restriction on all forms of discrimination and this protection extends to all Ghanaian nationals and foreigners in Ghana.
WHAT ENFORCEMENT/REMEDIES EXIST
Claims on age discrimination are not common in Ghana. Nevertheless, when actions of this manner are brought to court, certain civil remedies are available to the plaintiff. For instance for unfair termination which is most common in Ghana, the remedies that a court may grant according to the Labour Act include;
reinstatement of the worker;
ordering the employer to re-employ the worker in the work that the worker was employed before the termination or in another reasonably suitable work on the same terms and conditions; and
ordering the employer to pay compensation to the worker.
Under common law, the court may grant civil remedies such as declaration and injunctions. The court may also award damages in favour of the affected employee depending on the circumstances of the case.
HOW COMMON ARE CLAIMS
We are not aware of any reported cases or claims of discrimination on account of age.
WHAT CLAIMS ARE MOST COMMON AND WHAT ARE THE TRICKIEST ISSUES FOR EMPLOYERS
Claims for age discrimination are not very common in Ghana as there is no specific legislation providing protection against age discrimination. Rather, unfair termination claims are most common. This could be as a result of sexual discrimination, age, gender or religion among others. Although under the Labour Act, an employer can terminate employment without cause, where it is evident that there may be some underlying unjustifiable reason for termination, a claim for unfair termination can be brought to court by the employee.
RETIREMENT AGE
The retirement age in Ghana varies depending on whether the employee is engaged in public or private sector employment. The statutory retirement age for persons employed in public service is 60 years. However a civil servant who has attained the compulsory retirement age may be appointed on a limited engagement for 2 years at a time not exceeding 5 years in total where he or she (i) has retired from the civil service on the attainment of the compulsory retirement age; (ii) must have been in active service serving in that capacity before attaining the compulsory retirement age; (iii) and that there must be nobody immediately available to occupy the position that he or she will be re-engaged on a contract basis to serve.
There is no compulsory retirement age for persons employed in the private sector. This is determined by the conditions of service or contract of employment. We however note that private sector employers are required to set the minimum retirement age for the employees at 60 years so the employees will be entitled to a superannuation pension under the National Pension Act, 2008 (Act 766).
INTERESTING CASES
We are not aware of any interesting reported cases on age discrimination in Ghana.