Age discrimination in India — age discrimination

This summary of age discrimination law in India has been prepared by Kochhar & Co, the Ius Laboris member for India: www.kochhar.com

Overview

There are no codified laws, national or local, in India that directly deal with the issue of age discrimination. The Constitution of India guarantees certain fundamental rights to the citizens of India, including protection to individuals from discrimination only on the grounds of religion, race, caste, sex or place of birth. Age is not included. These fundamental rights are available only against the State. Nonetheless, under common law (India being a common law country), it would be possible for an individual to seek protection against age discrimination.

Generally speaking, where there are reasonable grounds for discrimination on the basis of age, such as the nature of the job, location of the job, etc., discrimination may be justified. For example, there is an age limit for recruitment in armed forces, and the retirement age of cabin crew of India’s national airlines is less than the retirement age of other central government employees or public undertakings.

Who's covered?

Unlike many countries, India does not have codified law that specifically deals with matters relating to discrimination on the basis of age. Therefore, the question of its applicability to the category of persons is not relevant in the Indian context. In practice however, age discrimination may be prohibited at different levels, depending upon the job requirement, be it in the matters of recruitment or relating to retirement. Similarly to other jurisdictions, armed forces in India are also excluded from the purview of all civil anti-discrimination laws and separate rules exist that govern the employment of armed personnel.

What enforcement/remedies exist?

Since there is no codified law on age discrimination in India, there is no designated statutory body which deals with matters pertaining to age discrimination.

Under the general Indian penal laws, no criminal sanctions are prescribed in relation to age discrimination.

Since there is no statutory protection available, only common law actions can be instituted where discrimination on the basis of age is highly unjustified. Civil remedies may include reinstatement (where an employee is terminated) with or without back wages and compensation. Depending on the category of the employee and nature of claim/allegation, such cases can be instituted in labour courts, service tribunals or civil courts.

How common are claims?

Claims pertaining to age discrimination are not very common in India and there are limited precedents which deal with the issue. In contrast, claims alleging other forms of discrimination (such as religion, race, caste, gender or place of birth) do exist as these are guaranteed as fundamental rights under the Constitution of India. Also, claims are increasingly more common based on allegations of discrimination due to sexual harassment and pregnancy amongst women.

Read more: Types of discrimination in workplace and their legal protection in India – iPleaders: http://blog.ipleaders.in/types-of-discrimination-in-workplace-and-their-legal-protection-in-india/#ixzz3YmCp5awJ

What claims are most common and what are trickiest issues for employers?

So far, claims amounting to age discrimination have not been very common in India. Instances of claims being brought by the so called ‘pale stale male’ solely on the basis of age discrimination are also unheard of in India. In the event an employee’s termination is in accordance with law and/or contract, and they are duly paid their redundancy pay and termination benefits (contractual and/or statutory), they can challenge the termination but not solely on the basis of age discrimination.

However, it may be relevant to mention that under Indian employment laws, special protection against termination without cause by an employer (referred to as ‘retrenchment’ in India) is available to workmen in India. A workman would be an employee inter alia engaged to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward but will not include an employee engaged in (a) a managerial or administrative capacity; or (b) a supervisory capacity and drawing wages more than Rs. 10,000 (US$ 200) per month. Thus, all employees other than one in a genuine managerial/supervisory role typically qualify as a workman for the purpose of Indian employment law. Depending on prescribed standards, retrenchment of workmen usually involves complex procedural formalities for an employer and it therefore is somewhat more difficult for an employer to retrench workmen, much less on the basis of age.

Even claims pertaining to age discrimination in recruitment are very rare. There are very limited reported instances of claims of discrimination being made on the basis of age at the time of recruitment.

It is interesting to note that with an increase in the number of younger workers in the Indian economy, there have been media reports of disgruntled older employees. There seems to be a slightly more heightened awareness that subtle discrimination based on age does exist in the private sector, such as instances where a more senior employee is not given a training opportunity which is instead given to a younger employee at the same level. However, there is limited or no case law thus far where a formal claim of age-related discrimination has been raised by an employee in the private sector.

With respect to discrimination matters, most of the work handled by Kochhar & Co. involves claims/allegations pertaining to gender, religion and sexual-harassment based discrimination.

Are there any specific exceptions in your laws?

Since there is no codified law on age discrimination, there are no specific prescribed exceptions which apply across all organisations. In practice, exceptions exist which are based on the age of an employee which vary from organisation to organisation. These usually relate to the particular classes of employees of government departments/organisations, public sector undertakings, armed forces, etc, where service benefits depend on the employee’s number of years of service, and thus are indirectly related to their age. Even the statutory redundancy payments depend upon the number of years of service of an employee and not age.

Retirement ages in India

In India, the age of retirement for Central government employees is currently 60 years. The retirement age for State government employees varies from State to State. For example, in the State of Kerala, the retirement age for government employees is 55 years while in the State of Punjab and the State of Assam it is 60 years.

The main Indian law that provides for an age for retirement/superannuation is the Industrial Employment (Standing Orders) Act and Rules thereunder, as amended by State law. This law applies only when an establishment has a specified number of “workmen”, with variations to the applicability from State to State. Certain State laws provide for an age of retirement, which is typically fifty eight (58) years or such other age as the employer and the employee may agree to.

Under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (“EPF Act”, which is a social welfare legislation), a covered employee’s right to accrue pension benefits under the “Pension Scheme” ends when the employee is 58 years old. However, the contributions towards the “Provident Fund/Deposit-Linked Insurance Fund” can continue to be made as long as the employee works. Thus, this law suggests that an employee does not need to retire at age 58 – he can continue to be employed as per the company’s retirement policy but his statutory pension accruals under the EPF Act will end at this age.

Companies in the private sector in India often do not choose to specify an age of retirement, which is more of a practice followed in public sector companies. In case a private sector company does have a retirement age policy, the age varies between 58-65 years, which can be extended at the company’s discretion.

Interesting cases

As mentioned earlier, claims on age discrimination are rarely brought to the Indian courts. The case discussed below deals with the issue of different retirement age of male and female crew members of Air India.

Air India Vs. Nergesh Meerza and Others (AIR 1981 SC 1829)

The issue that came up for consideration before the Honourable Supreme Court of India was whether Regulation 46(i)(c) and Regulation 47 of the Air India Employees Service Regulations were discriminatory in nature and were unconstitutional. Regulation 46(i)(c) fixed the age of retirement for air hostesses working for Air India at 35 years. It also provided that the air hostesses would retire upon first pregnancy or on marriage within first four years of service, whichever is earlier. Regulation 47 provided that on being found medically fit, the retirement age of air hostesses could be extended by 10 more years at the option of the Managing Director. The retirement age of male cabin crew on the other hand was 58 years.

The Honourable Supreme Court of India struck down two service conditions applicable to Air India employees. First, the Court struck down the service condition which provided for termination of service of air hostesses on first pregnancy, holding it to be in violation of Article 14 (Right to equality) of the Constitution of India. Second, the Court struck down the provision which provided that the extension of service of an air hostess beyond 35, if found medically fit, would be at the discretion of the Managing Director. While striking the latter condition, the Court held that the real intention of the makers of this regulation has not been carried out because the Managing Director has been given uncontrolled, unguided and absolute discretion to extend or not to extend the period of retirement after an air hostess attained the age of 35 years. The Court held that the said regulation gave wide powers to the Managing Director which might result in discrimination.

However, with respect to the claim regarding the disparity in retirement age of the air hostesses and the male crew members, the Court rejected the claim as not being discriminatory. The Court observed that male and female members of the crew are distinct cadres with different conditions of service. Appreciating the fact that Air India had fixed the retirement age of air hostesses different from the male crew members taking into account the nature of work, prevailing conditions of service, the need to safeguard health of females, and other relevant factors, the Court negated the grievance that service conditions providing lower age of retirement to air hostesses is unfavourable or discriminatory.

India