This summary of age discrimination law in Singapore has been prepared by Rajah & Tann, the Ius Laboris affiliate for Singapore: www.rajahtannasia.com
Overview
Under Singapore law, the Retirement and Re-employment Act 1993 of Singapore (the "Act") and its related subsidiary legislation provide employees protection against age discrimination.
The rules generally relate to:
● Statutory protection of employees against dismissal based on age. The Act prohibits employers from dismissing employees before they attain the “specified age” for a reason that is solely on the ground of their age. The “specified age” is the prescribed minimum retirement age (currently 63) or the retirement age stated in the contract, whichever is higher;
● Re-employment of employees upon attainment of the specified age;
● Grant of an employment assistance payment by the employer if an employee cannot be re-employed upon attainment of the specified age (unless the employee informs the employer that he/she does not wish to continue employment);
● Remedies for unlawful dismissal on the ground of age;
● Remedies relating to unreasonable denial of re-employment and dismissal without just cause or excuse; and
● Remedies relating to unreasonable terms and conditions of re-employment and employment assistance payment.
Recommendations on fair employment practices and re-employment of older employees are also contained in the Tripartite Guidelines on Re-employment of Older Employees (the "Tripartite Guidelines"). While the Tripartite Guidelines do not have the force of law, they supplement Singapore employment law and the Ministry of Manpower can take action against employers who do not comply with the Tripartite Guidelines. This write-up deals mainly with the Act and not the Tripartite Guidelines.
Who's covered?
The Act covers all employees that are Singapore citizens or permanent residents except for certain categories of employees exempted under the Retirement and Re-employment (Exemption) Notification 2011 ("Exemption Notification").
General position
Under section 2 of the Act, an "employee" is defined as "a person who has entered into or works under a contract of service with an employer". An "employer" in turn, includes but is not limited to the Government, any statutory authority, any duly authorised manager or agent of any employer, and any person who owns or is carrying on, or for the time being is responsible for the management or control of a profession, business, trade or work in which any employee is engaged. Hence, the Act covers a wide scope of employees.
Exemptions
The Exemption Notification provides some exemptions for employers to the minimum retirement age and wage requirements, as well as the re-employment requirements. Examples of exempted employees include:
● a person who is required under his/her contract of service made before they attained the minimum retirement age to work for a fixed term on a specific project;
● a person who is required under his/her contract of service made before they attained the minimum retirement age to work for not more than 20 hours per week;
● a civil servant who is eligible to retirement benefits or pension under the Pensions Act 1956 of Singapore;
● certain categories of civil servants;
● a person below 55 years of age who has less than 2 years of service with his/her employer; and
● a person who is aged over 55 when recruited by an employer.
WHAT ENFORCEMENT/ REMEDIES EXIST?
Dismissal before minimum retirement age
If an employee is unlawfully dismissed below the specified age on the ground of age, he/she can make representations in writing to the Minister of Manpower ("Minister") within 1 month from the dismissal and ask that he/she be reinstated to his/her former employment.
Possible remedies are: (i) reinstatement to the employee's former employment and payment of an amount equivalent to the salary that the employee would have earned had he/she not been unlawfully dismissed by the employer; or (ii) a just and equitable compensation.
Re-employment – Unreasonable denial of re-employment or dismissal without just cause or excuse
If an employer unreasonably denies an employee re-employment, or dismisses him/her without just cause or excuse, an employee wishing to bring a claim about this must first notify the Commissioner for Labour ("Commissioner") of the dispute no later than 1 month after the last day of his/her employment. The aim is to assist the employee and employer to reach an agreement through conciliation.
If the conciliation fails, the employee has to make a representation to the Minister no later than 1 month after conclusion of the conciliation. Possible remedies that may be granted include re-employment or compensation.
The Minister's decision is final, and the employee is barred from making further claims for damages based on the same action. Representations made to the Minister also operate as a bar to the making of any representations under the Industrial Relations Act 1960 of Singapore. An employer who fails to comply with the Minister's directions will be liable to a fine of S$10,000 and/or 12 months' imprisonment.
Re-employment – Unreasonable terms and conditions of re-employment contracts and employment assistance payments
In the event there is a dispute in relation to unreasonable terms of a re-employment contract or an unreasonable employment assistance payment, an employee must, before lodging a claim against the employer under the Employment Claims Act 2016 of Singapore, submit a mediation request to the Commissioner under the Employment Claims Act 2016 of Singapore no later than 6 months after the last day of his/her employment.
If a claim referral certificate is issued in respect of the dispute after the mediation is conducted, the employee can lodge a claim for employment assistance payment with the Employment Claims Tribunal under the Employment Claims Act 2016.
Similarly, representations made to the Minister also operate as a bar to the making of any representations under the Industrial Relations Act 1960 of Singapore.
Appeals
The Minister's directions are final and there is no right of appeal from this.
Appeals to a Commissioner’s decision can be made to the High Court within 14 days after the Commissioner's judgment or order. An appeal can only be brought if there is a substantial question of law involved.
How common are claims?
Although age discrimination laws have existed since 1993 (the predecessor of the Act was first enacted in 1993 as the Retirement Age Act, the "RAA"), there has been only one reported judgment in the Singapore courts – the 2000 Singapore High Court case of Noor Mohamed bin Mumtaz Shah v Apollo Enterprises Ltd (trading as Apollo Hotel Singapore) ("Apollo Enterprises"). Further details about this case are provided below.
There are a number of possible reasons why age discrimination claims are so rare, including:
● employers dismissing employees on grounds other than their age (e.g. termination by notice, for which the employer would not have to provide any reason for the termination unless the terms of the employment contract expressly specifies so); and
● the majority of cases are settled at the conciliation stage when the Commissioner has been notified.
What are the trickiest issues for employers?
Tricky issues for employers include the following:
Termination of employees close to (but who have not yet reached) the minimum retirement age of 62
While employers may have the right to terminate employees pursuant to the terms of their contracts, they should not do so on the ground of age (i.e. there should be other reasons for the termination). However, if an employee close to the minimum retirement age is terminated, there potentially might be a suspicion that such employee might have been terminated for reasons of age. If such termination is challenged by the employee, the onus will then fall on the employer to prove that the termination was not for reasons of age.
Re-employment of employees who have reached the retirement age
Under the Act, an employer must offer re-employment to an employee before that employee reaches the specified age. An employer will need to spend some time investigating suitable re-employment opportunities within their organisation and identify suitable jobs for eligible employees, which may potentially be rather time and resource consuming.
An employer will not be required to re-employ an employee if:
1. the employee does not satisfy the eligibility criteria (as defined below) and the employer does not intend to continue employing the employee after he/she reaches the specified age, provided that in such event the employer gives reasonable prior written notice to the employee of the termination of his/her employment in accordance with the terms of his/her employment contract;
2. the employee is eligible for re-employment under the Act, but informs the employer that they do not want to be re-employed; or
3. the employee is eligible for re-employment under the Act, but the employer is unable to find a suitable vacancy despite making reasonable attempts to do so, and in such event the employer has to offer an employment assistance payment to the employee.
An employee is eligible for re-employment under the Act if he/she satisfies all of the following eligibility criteria:
1. the employee is a Singapore citizen or Singapore permanent resident;
2. if the employee was hired by his/her employer when the employee was 55 years old or older, he/she served his/her employer for at least 2 years before turning 63 years old;
3. he/she has satisfactory work performance, as assessed by his/her employer; and
4. he/she is medically fit to continue working.
In the event the employer is unable to re-employ an eligible employee because it does not have a suitable vacancy, an employment assistance payment has to be made (unless the employee does not wish to continue employment with the employer). If however, the employee does not satisfy the eligibility criteria, and the employer does not intend to continue employing the employee after he/she attains the specified age, the employer shall, in so far as it is reasonably practicable, give reasonable prior notice in writing to the employee of the termination of his/her employment in accordance with the terms of his/her employment contract.
Difficulty in finalising terms and conditions of the new employment contract
When an employee is re-employed, an employer may offer such employee re-employment on different terms and conditions than the employee enjoyed previously.
As the variation can be based on factors such as the employee's productivity, performance, duties and responsibilities, it may be difficult for the parties to agree on the exact terms and conditions, such as the job scope and the employment package.
Are there any specific exceptions in your law?
The exceptions are contained within the Exemption Notification, which exempts certain categories of employees from the scope of the Act (as stated above).
However, for all employees covered, the provisions in the Act would apply even if any term in their employment contract or collective agreement (a) excludes or limits the operation of any provision under the Act, or (b) precludes any person from making a representation, claim or application under the Act. Simply put, employers are not allowed to contract out of their statutory obligations under the Act.
Retirement ages
Under section 4(2) of the Act, the Minister can specify the prescribed minimum retirement age applicable to any class of employees. The current statutory minimum retirement age is 63 years. Hence, any employer who dismisses an employee solely on the ground of his/her age before the employee reaches 63 years of age would be guilty of an offence. However, if the employment contract stipulates a higher retirement age, this higher age will apply (subject to a maximum of 68 years).
Interesting cases
In Apollo Enterprises (referenced above) the claimant employee claimed that the RAA (the predecessor of the Act) operated to remove an employer's right to terminate with notice. However, the Singapore High Court rejected this argument and reiterated that the purpose of the RAA is not to compel employers to keep poor performers or ill-disciplined employees. Therefore, legislation will not prohibit an employer from dismissing an employee before retirement age if there are grounds other than age which warrant such termination of employment.
Please note, this article provides only generic information on age discrimination in Singapore and is not intended to be relied on as legal advice. For advice on a particular situation, please contact Rajah & Tann Singapore LLP.